Opinion
2d Crim. No. B289061
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. OMAR HERNANDEZ RUIZ et al., Defendants and Appellants.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Omar Hernandez Ruiz. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant Franky Magana. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2014027681)
(Ventura County)
Omar Hernandez Ruiz appeals a judgment following conviction of second degree murder, shooting at an inhabited dwelling, evading a police officer, assault on a police officer with an assault weapon, possession of a firearm by a felon, and possession of body armor by a felon, with findings of a criminal street gang benefit, the discharge of a firearm, and prior serious felony and strike convictions. (Pen. Code, §§ 187, subd. (a), 189, 246, 245, subd. (d)(3), 29800, subd. (a)(1), 31360, subd. (a), 186.22, subds. (b)(1) & (f), 12022.53, subds. (c) & (e)(1), 667, subd. (a), 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1); Veh. Code, § 2800.2, subd. (a).) We reverse and remand for resentencing and correction of the trial court's minute order and the abstract of judgment as discussed herein, but otherwise affirm.
All statutory references are to the Penal Code unless otherwise stated.
Codefendant Franky Magana appeals a judgment following conviction of second degree murder, and shooting at an inhabited dwelling, with findings of a criminal street gang benefit and personal firearm discharge. (§§ 187, subd. (a), 189, 186.22, subds. (b)(1) & (f), 12022.53, subd. (e)(1).) We order the correction of the trial court's minute order and the abstract of judgment, but otherwise affirm.
This appeal concerns the criminal street gang murder of Ulises Virto, a reputed associate of the "Crimies" street gang. Ruiz and Magana, members of the "Crazy Boyz" criminal street gang, encountered Virto on Dartmouth Road in Santa Paula. Virto was then killed by multiple gunshot wounds to his back. Ruiz, the driver of the vehicle in which Magana and another man (unknown) were passengers, fled the scene. A high-speed police chase ensued and firearms were tossed from the vehicle. The vehicle then slowed and Magana jumped outside. Following a foot chase, he was taken into custody. Ruiz was arrested five months later after firing an assault weapon at a sheriff's deputy.
FACTUAL AND PROCEDURAL HISTORY
Murder and Shooting at Inhabited Dwelling
(Counts 1 & 2)
German Renteria, Sr. lived with his family, including his son, German Renteria, Jr., on Dartmouth Road in Santa Paula. Renteria, Jr. was a documented Crimies criminal street gang member whose moniker was "Fat Boy."
During the afternoon of May 27, 2013, the family held a backyard birthday party for Renteria, Sr. Renteria, Jr. and his friends, including five Crimies gang members, attended. Virto, who was not a gang member, also attended. A video-recording of the gathering reflects the attendance of the gang members and Virto. The guests departed when the party ended about 6:00 p.m.
At approximately 8:00 p.m. that evening, Alysa Cook noticed Virto on the corner of Dartmouth Road and Cornell Drive. A few minutes later, Cook saw a white sedan automobile with tinted windows drive southbound on Dartmouth Road, execute a U-turn, and then stop beside Virto. Virto approached the vehicle and conversed with its occupants; Cook did not hear the conversation.
Virto then slowly walked away while the vehicle drove alongside him, eventually out of Cook's sight. Approximately one minute later, Cook heard a burst of gunfire. She then heard sounds like "kicking of a front door or pounding on a front door," as well as yelling. Approximately 10 to 20 seconds later, Cook heard a second burst of gunfire. She then called for police assistance.
Neighbor David Johnson, a retired sheriff's deputy, heard 6 to 10 gunshots in rapid succession that evening. Approximately 15 to 20 seconds later, he heard a second set of gunshots. Johnson left his residence and, 30 to 45 seconds later, saw a white Nissan automobile proceed quickly northbound on Dartmouth Road. The automobile contained at least three occupants.
At approximately 7:46 p.m. that evening, Renteria, Sr. heard gunshots fired near the front of his residence. He heard someone shouting for help and attempting to open the front screen door. Seconds later, Renteria, Sr. heard another series of gunshots fired closer to the front door. He then heard a vehicle speed away. When he opened the front door, Renteria, Sr. found Virto's body outside the doorway.
The medical examiner concluded Virto died from seven gunshot wounds in his back. Virto also suffered bruises and lacerations caused before death - "[he] fell on something or something hit him." During the autopsy, the examiner recovered six expended bullets, including one from Virto's clothing.
The Santa Paula Police Department dispatcher received an emergency assistance call at 8:54 p.m., and dispatched police officers to the shooting scene. Police Officer Joash Rothermel was driving a marked patrol vehicle when he saw a white Nissan automobile driven by Ruiz in the opposing traffic lane. Rothermel turned his vehicle around to effect a traffic stop, but Ruiz sped away. Rothermel gave chase as Ruiz exceeded the speed limit, ignored stop signs, drove against traffic, and nearly collided with a parked vehicle and traffic poles.
A passenger in the Nissan automobile threw a Colt .45 pistol, a Ruger nine-millimeter pistol, a Taurus .38 caliber revolver, gloves, and a ski mask from the window. Ruiz slowed the vehicle and Magana jumped out and ran. Within a short time, Rothermel apprehended Magana, who stated: "[F]uck, you guys are fast."
Ruiz abandoned the Nissan automobile, which was owned by his now-wife, several blocks from Magana's arrest location. A witness saw two men leave the vehicle and run in opposite directions.
Police officers recovered a Colt .45 handgun from the grounds of an elementary school located on the path of the police pursuit. Officers also recovered .45 cartridge cases from the front of the Renteria residence - the street, driveway, and front yard. The cartridge cases as well as the bullets in Virto's body were fired from the Colt .45 handgun.
Police officers also recovered a loaded Ruger nine-millimeter handgun and a magazine from the elementary school grounds. Additional ammunition for the Ruger was found in the front console of the Nissan automobile. Cartridge cases were found on Dartmouth Road; bullets in the side of a garage door facing the Renteria residence, a bullet under Virto's body, and a bullet on Cornell Drive were determined to have been fired from the Ruger handgun.
In addition, police officers recovered a .38 caliber Taurus revolver from an intersection along the pursuit path. Two bullets fired in front of the Renteria residence were determined to have been fired from this handgun.
Following his arrest, Magana's hands were tested and found positive for characteristic particles of gunshot residue. DNA testing also revealed the presence of Magana's DNA on portions of the Colt .45 handgun, its ammunition magazine, the front passenger door handle of the Nissan automobile, and the ski mask thrown from the window during the police pursuit. The probability that another Hispanic person would have the same DNA profile is one in 42 quintillion. Magana's blood was also found on the handgun.
DNA testing revealed the presence of Virto's DNA on the trigger and hammer of the .38 caliber Taurus handgun. The probability that another Hispanic person would have the same DNA profile is one in 19 quintillion.
Santa Paula Police Detective Allen Macias testified as a gang expert witness regarding the Crazy Boyz criminal street gang, its primary activities, and predicate offenses committed by Ruiz and Magana, among others. Macias stated that Ruiz and Magana were documented Crazy Boyz members with monikors and gang-related tattoos signifying Crazy Boyz membership. Magana's cellular telephone also contained photographs of his association with Ruiz and other gang members, some making gang hand-signs or displaying firearms. Macias testified that the presence of Crimies gang members in Crazy Boyz claimed-neighborhood would be construed as disrespect to the Crazy Boyz gang.
At trial, Ruiz offered partial alibi evidence from his family members. Ruiz's mother informed police officers that Ruiz received a telephone call and then left their residence in the early evening.
Arrest of Ruiz
(Counts 5-8)
On November 7, 2013, Ventura County sheriff's deputies executed an arrest warrant for Ruiz at a residence in Camarillo that had multiple surveillance cameras. Ruiz fired an assault rifle at the deputies but, within 15 minutes, surrendered and was taken into custody. Inside the residence, deputies found a ballistic vest, loaded assault rifle magazines, and a bumpstock.
Conviction, Sentencing, and Appeal
The jury convicted Ruiz and Magana of second degree murder (count 1), and shooting at an inhabited dwelling (count 2). (§§ 187, subd. (a), 189, 246.) The jury also found that the crimes were committed to benefit a criminal street gang, and that a principal personally discharged a firearm regarding count 2. (§§ 186.22, subd. (b)(1), 12022.53, subd. (e)(1).)
In addition, the jury convicted Ruiz of evading a police officer, assault on a police officer with an assault weapon, possession of a firearm by a felon, and possession of body armor by a felon, with findings of related criminal street gang and firearm enhancements (counts 3, 5, 6, & 7). (Veh. Code, § 2800.2; §§ 245, subd. (d)(3), 29800, subd. (a)(1), 31360, subd. (a), 186.22, subd. (b)(1), 12022.53, subd. (c).) Separately, Ruiz admitted that he suffered two prior serious felony and strike convictions. (§§ 667, subd. (a), 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1).)
The trial court sentenced Ruiz to a prison term of 163 years four months to life and awarded him 1,595 days of presentence custody credit. The sentence included triple-the-base-term sentencing as a third strike sentence, plus an additional five years for a prior serious felony conviction pursuant to section 667, subdivision (a). The court did not impose any restitution fines or statutorily mandated fees, but the sentencing minute order and the abstract of judgment recite specific fines and fees.
During sentencing, the trial judge acknowledged that he had the discretion to strike the firearm enhancement and prior felony strike convictions but chose not to exercise his discretion. He stated: "I think that the sentences in this case are legally and factually deserved . . . ."
The trial court sentenced Magana to a prison term of 47 years to life, imposed a $300 restitution fine, a $300 parole revocation restitution fine (suspended), a $40 court security assessment, a $30 criminal conviction assessment, and awarded Magana 1,764 days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)
Ruiz and Magana appeal and contend that: 1) the trial court erred by denying a motion for a continuance of trial; 2) they received the ineffective assistance of counsel because counsel did not offer a witness's grand jury testimony; 3) the trial court erred by admitting evidence of text messages from Magana's cellular telephone; 4) the trial court erred by refusing an instruction regarding heat-of-passion manslaughter; 5) there is cumulative error; 6) the personnel records of Officer Rothermel may contain discoverable evidence pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); and, 7) the trial court committed various sentencing errors. Ruiz and Magana join the arguments in the other's briefs to the extent the arguments are applicable and beneficial.
DISCUSSION
I.
Ruiz and Magana argue that the trial court abused its discretion by denying a continuance to locate Veronica Virto, a witness who testified at the grand jury proceedings. They assert that the ruling denied their federal and state constitutional rights to present a defense, due process of law, a fair trial, and the effective assistance of counsel. They contend that the error is reversible pursuant to any standard of review.
We will refer to the Virto family members by their first names, not from disrespect, but to ease the reader's task.
At the grand jury proceeding, Veronica testified that Virto, her nephew, displayed a handgun to her the day prior to his murder and stated that he had been tasked with taxing drug dealers. Virto also stated that the handgun belonged to "Fat Boy" (Renteria, Jr.). Although they searched for Veronica for several months at many possible locations, Ruiz and Magana were unable to locate her. The prosecutor had recently provided Veronica's most recent address, but she no longer was there.
At trial, Keila Virto testified that her brother was not a gang member and she did not know him to carry a firearm. At the time set for closing argument, Magana informed the court that he had a reliable nearby apartment address for Veronica and requested a continuance to bring her into court. The trial court granted the defense a morning recess to locate Veronica and bring her into court in the afternoon.
When the trial court resumed proceedings that afternoon, defense counsel stated that no person responded to the door at the nearby address, although it appeared someone was living there. Defense counsel requested a further continuance to find Veronica; the prosecutor objected and pointed out that the defense had three years to serve Veronica, and that trial had already consumed 20 days. The court denied the request and, later that day, proceedings resumed. The defense did not raise the issue again nor did it file a new trial motion on this basis.
A party requesting a continuance must establish good cause therefor. (§ 1050, subd. (e).) "To establish good cause for a continuance, defendant [has] the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171 [statement of general rule].)
"There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process." (Ungar v. Sarafite (1964) 376 U.S. 575, 589 [11 L.Ed.2d 921, 931].) The party challenging a ruling regarding a continuance bears the burden of establishing an abuse of discretion. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181, overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) An order denying a continuance is seldom successfully attacked. (Ibid.)
The trial court did not abuse its discretion by denying the motion to continue trial. Ruiz and Magana did not establish that Veronica's testimony could be obtained within a reasonable time or at any time. (People v. Howard, supra, 1 Cal.4th 1132, 1171; People v. Livingston (1970) 4 Cal.App.3d 251, 255 [no showing that witnesses' attendance could have been secured within a reasonable time or any time].) "Instead, defendant could only offer the prospect of further delay while he searched." (Howard, at p. 1171.) "Given counsel's unsuccessful attempt to locate the key witnesses, the trial court acted well within its discretion in concluding an additional continuance with no proffered basis to expect success was unjustified." (People v. Winbush (2017) 2 Cal.5th 402, 470.) Under these circumstances, Ruiz and Magana cannot establish that their constitutional rights were impaired. (Howard, at pp. 1171-1172.)
II.
Ruiz and Magana contend that they received the ineffective assistance of counsel because counsel did not seek to admit Veronica's grand jury testimony pursuant to Evidence Code section 1291, subdivision (a)(1), the exception for former hearsay.
To establish a claim for ineffective assistance of counsel, defendant must establish that counsel's performance was deficient and that defendant suffered prejudice therefrom. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 [80 L.Ed.2d 674, 693-696; People v. Patterson (2017) 2 Cal.5th 885, 900; People v. Mickel (2016) 2 Cal.5th 181, 198.) In demonstrating deficient performance, defendant bears the burden of showing that counsel's performance fell below an objective standard of reasonableness. (Mickel, at p. 198; People v. Orloff (2016) 2 Cal.App.5th 947, 955.) In demonstrating prejudice, defendant bears the burden of establishing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Patterson, at p. 901.)
Ruiz and Magana have not established a reasonable probability that admission of Veronica's grand jury testimony would have resulted in a different outcome. Scientific evidence established that Virto's DNA was on the grip and trigger of the Taurus handgun that Magana tossed during the police pursuit. The evidence that Virto displayed a handgun to Veronica the day before he was killed would have been cumulative to the scientific evidence. It is extremely unlikely the evidence that Renteria, Jr. gave the handgun to Virto or that Virto was tasked with collecting taxes would have made a difference in the outcome of the trial.
III.
Ruiz contends that the trial court erred by admitting evidence, over defense objections of relevance and prejudice, of text messages from Magana's cellular telephone. This exchange occurred nearly seven months prior to Virto's killing: Magana: "Shoot me [some] pic of the slimies." In response, "Fatso" (not Ruiz) sent photographs of three men, two of whom were Crimies gang members who attended the Renteria, Sr. birthday party held months later. Ruiz asserts that the evidence was not relevant to him because he was not a party to the text messages.
The trial court admitted the text message evidence as relevant to motive. The court concluded that its probative value outweighed any prejudice pursuant to Evidence Code section 352.
Evidence of gang membership and activity is admissible where it is relevant to motive or intent. (People v. McKinnon (2011) 52 Cal.4th 610, 655.) " ' "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." ' " (Ibid.)
The trial court did not abuse its discretion in admitting the text message evidence against Magana and Ruiz. The gang expert testified that the Crazy Boyz and the Crimies were rivals and that it signified disrespect for one gang to have a gathering in the neighborhood claimed by the other gang. Ruiz and Magana exchanged telephone calls the evening of the killing and Ruiz drove Magana to the Renteria neighborhood in his then-girlfriend's automobile. Ruiz and Magana were documented Crazy Boyz members; Magana had photographs of Ruiz and others on his telephone, some making gang signs or holding firearms. The text message evidence was not unduly inflammatory and did not emphasize the generally violent nature of gang membership. Moreover, the court instructed with CALCRIM No. 1403 that the evidence was admitted for the limited purpose of proving motive. Ruiz has not established that the court abused its discretion by admitting the evidence against him.
IV.
Ruiz and Magana argue that the trial court erred by refusing to instruct regarding sudden quarrel or heat-of-passion manslaughter. (§ 192, subd. (a); CALCRIM No. 570.) In requesting the instruction, Magana relied upon asserted reasonable inferences drawn from evidence that Virto spoke with the occupants of the Nissan automobile, his DNA was on the Taurus handgun, and gunshot residue was on his hands. On appeal, they add that a neighbor saw Renteria, Jr. exchange conversation with the occupants of the Nissan automobile one hour prior to the shooting. They assert that there are reasonable inferences that Virto brandished a handgun and was the initial aggressor. Also, that the many gunshots fired at Virto allow the reasonable inference that they shot him in a passionate rage. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139, 1141 [victim's belligerent and threatening behavior provoked defendant].) Ruiz and Magana contend that the error is prejudicial and denies them due process of law pursuant to the federal and state constitutions.
Although the trial court instructed regarding self-defense and imperfect self-defense, it refused to instruct regarding sudden quarrel or heat-of-passion manslaughter because it found insufficient evidence to support the instruction.
In criminal cases, the trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary to the jury's understanding. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Enraca (2012) 53 Cal.4th 735, 758.) The evidence necessary to support a lesser included offense instruction must be substantial from which reasonable jurors could conclude that the facts underlying the instruction exist. (Ibid.) The substantial evidence requirement is not satisfied by any evidence, no matter how weak, but evidence from which a jury could conclude that the lesser offense, but not the greater, was committed. (Nelson, at p. 538.) We independently review whether the trial court should have instructed concerning a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . is however predominantly legal. As such it should be examined without deference." (Ibid.) Doubts regarding the sufficiency of evidence to warrant a lesser included offense instruction, however, must be resolved in favor of the defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
The crime of murder may be reduced to voluntary manslaughter if the victim engaged in provocative conduct sufficient to cause an ordinary person of average disposition to act in the heat of passion, i.e., rashly or without due deliberation and reflection. (People v. Enraca, supra, 53 Cal.4th 735, 759; People v. Gutierrez (2009) 45 Cal.4th 789, 826 [" 'The provocation must be such that an average, sober person would be so inflamed that he or he would lose reason and judgment' "].) "Heat of passion" is a state of mind created by legally sufficient provocation causing a person to act not from rational thought, but from an unconsidered reaction to the provocation. (People v. Nelson, supra, 1 Cal.5th 513, 539 [legally sufficient provocation eclipses reflection and causes a person to act without deliberation or judgment]; People v. Beltran (2013) 56 Cal.4th 935, 942 [a person who acts without reflection in response to adequate provocation does not act with the mental state required for murder].) " 'Adequate provocation and heat of passion must be affirmatively demonstrated.' " (Gutierrez, at p. 826.)
The heat of passion element of voluntary manslaughter has an objective and a subjective component. (People v. Enraca, supra, 53 Cal.4th 735, 759.) "Objectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Ibid.) It is not the standard of a " 'reasonable gang member.' " (Ibid.) Subjectively, the accused must be shown to have killed while under the actual influence of a strong passion induced by such provocation. (Ibid.)
The trial court did not err by refusing the instruction because substantial evidence and reasonable inferences therefrom did not support it. (People v. Nelson, supra, 1 Cal.5th 513, 538; People v. Thomas (2012) 53 Cal.4th 771, 813 [lesser included offense instruction not required where there is no evidence that offense is less than that charged].) Ruiz and Magana offer only speculation as to provocation or a killing executed in rage. (People v. Sakarias (2000) 22 Cal.4th 596, 620 [speculation insufficient to warrant lesser included offense instruction].) There is no evidence or reasonable inferences therefrom that Virto was the initial aggressor or that Renteria, Jr. provoked Ruiz and Magana an hour prior to the killing. Failure to instruct with an instruction on a lesser included offense that is not supported by sufficient evidence does not constitute fundamental unfairness or loss of verdict reliability. (People v. Holloway (2004) 33 Cal.4th 96, 141.)
V.
Ruiz and Magana contend that prejudice from cumulative error deprived them of due process of law pursuant to the federal and state constitutions. We have concluded that Ruiz and Magana received a fair trial and that there is no error to cumulate. (People v. O'Malley (2016) 62 Cal.4th 944, 1017.)
VI.
Ruiz and Magana request that we review the trial court's December 20, 2016, Pitchess proceedings to determine whether the court abused its discretion in finding no discoverable evidence. The Attorney General does not object. Magana sought the personnel records of Officer Rothermel. The court then conducted an in camera hearing regarding complaints affecting Rothermel's credibility. After reviewing the records, the court concluded that there was no discoverable information.
We have independently reviewed the sealed hearing transcript and conclude that the trial court properly followed Pitchess procedures. The court placed the custodian of records under oath, questioned the custodian carefully, and a court reporter transcribed the proceedings. The court ordered the transcript sealed and made a detailed record of the documents it reviewed. (People v. Mooc (2001) 26 Cal.4th 1216, 1226, 1229 [trial court should make a record of the documents it examined before ruling on the Pitchess motion and can do so by describing them on the record]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 462 [same].) The court did not abuse its discretion by concluding that there was no relevant evidence to be disclosed.
VII.
Asserted Sentencing Errors
Motion to Strike Prior Felony Strike Conviction
Ruiz contends that the trial court abused its discretion and denied him due process of law by denying a motion to dismiss a prior strike conviction in the interest of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th 497.) He points out that he suffered two prior strike convictions on December 15, 2006 (in the same case) for vandalism with personal use of a firearm and making criminal threats. (§§ 594, subd. (b)(1), 12022.5, subd. (a), 422.) Ruiz asserts that the convictions are remote and adds that he received only a two year eight month term for the two convictions. He argues that he was merely a driver in the present crime and points out that he was convicted of second degree, not first degree, murder of Virto.
Pursuant to section 1385, subdivision (a), the trial court may strike a prior felony conviction " 'in furtherance of justice.' " (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court and the reviewing court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part . . . ." (Ibid.) At the very least, the reason for dismissing a strike conviction must be that which would motivate a reasonable judge. (Id. at p. 159.) When the circumstances "manifestly support" the striking of a prior conviction and no reasonable minds could differ, the failure to strike constitutes an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-378; id. at p. 378 [abuse of discretion exists only in "an extraordinary case"].)
We review rulings regarding motions to strike prior felony convictions pursuant to a deferential abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th 148, 162; People v. Myers (1999) 69 Cal.App.4th 305, 309.) Appellant bears the burden of establishing that the trial court's decision is unreasonable. (People v. Carmony, supra, 33 Cal.4th 367, 376 [burden placed on appellant to establish that sentencing decision is irrational or arbitrary]; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives]; Myers, at pp. 309-310.) We do not substitute our decision for that of the trial court. "It is not enough to show that reasonable people might disagree about whether to strike one or more of [defendant's] prior convictions." (Myers, at p. 310.)
The trial court properly determined that this is not an extraordinary case that "manifestly support[s]" dismissal of the prior strike. (People v. Carmony, supra, 33 Cal.4th 367, 378.) As such, the court did not abuse its discretion. (People v. Solis (2015) 232 Cal.App.4th 1108, 1124-1125 [no abuse of discretion in refusal to strike two 30-year-old felony convictions for assault with a deadly weapon].) Ruiz has a lengthy juvenile and adult criminal history, including a 2006 conviction for possession of a firearm by a felon. While in custody for the present offenses, Ruiz had major disciplinary sanctions for, among other things, possession of an altered razor and mutual combat. When Ruiz committed the present offenses, he was a parolee. The probation officer found no mitigating sentencing factors.
Ruiz argues that the trial court's expression of sympathy for his, Magana's, and Virto's families suggests that the court relied upon impermissible factors in denying his motion. The parties presented written and oral argument to the court discussing the applicable law. We presume that the court understood and applied the law correctly. (People v. Myers, supra, 69 Cal.App.4th 305, 310 [absent an affirmative record to the contrary, we presume the trial court considered all relevant factors].) There is also no requirement that the court give a statement of reasons for denying a motion to dismiss a prior strike conviction. (In re Coley (2012) 55 Cal.4th 524, 560.) Ruiz has not met his burden of establishing that the court's decision was unreasonable or that the court misunderstood its sentencing discretion. (People v. Carmony, supra, 33 Cal.4th 367, 376.)
Five-Year Enhancement (§ 667 , subd. (a))
Ruiz contends that his case must be remanded to permit the trial court to exercise its newly enacted discretion to strike the five-year enhancement imposed by section 667, subdivision (a). The Attorney General responds that the court's sentencing comments suggest that it would not in any event strike the enhancement. (People v. Jones (2019) 32 Cal.App.5th 267, 274 [trial court imposed upper term, doubled term for prior strike, commented on aggravating factors, and stated defendant "earned" the sentence].) The Attorney General points out that the court described the crime as senseless, and that the sentence imposed was "legally and factually deserved." The court also imposed upper-term consecutive sentences and declined to strike Ruiz's prior strike conviction.
Prior to 2019, trial courts were without authority to strike a prior serious felony conviction imposed pursuant to section 667, subdivision (a). (Former § 1385, subd. (b).) Senate Bill No. 1393 removed this prohibition. (Stats. 2018, ch. 1013, § 2.) This legislation became effective on January 1, 2019. (People v. Jones, supra, 32 Cal.App.5th 267, 272.)
The new legislation applies to Ruiz because his case is not yet final. (In re Estrada (1965) 63 Cal.2d 740, 744; People v. Garcia (2018) 28 Cal.App.5th 961, 973 [Senate Bill No. 1393 applies to all cases not yet final on its effective date].) " '[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory's statute's effective date.' " (People v. DeHoyos (2018) 4 Cal.5th 594, 600.)
Although the likelihood of the trial court striking the five-year enhancement may be slight, Ruiz is entitled to a sentence imposed by a court that is fully aware of its sentencing discretion. Thus, we remand the case with directions to the court to decide, at a hearing at which Ruiz has the right to be present with counsel, whether it will exercise its discretion to strike the prior serious felony conviction imposed pursuant to section 667, subdivision (a). If the court decides to strike the enhancement, Ruiz shall be resentenced and the abstract of judgment amended accordingly. If the court decides not to strike the enhancement, Ruiz's sentence shall remain in effect. We express no opinion on the exercise of the court's discretion in this matter.
Ability to Pay
People v. Dueñas (2019) 30 Cal.App.5th 1157
Magana contends that the trial court failed to determine his ability to pay before imposing restitution fines and assessments at sentencing. He asserts that he has been denied due process of law and is entitled to a hearing to determine his ability to pay. Magana points out that the court determined that he lacked the ability to pay booking fees or presentence investigation fees.
Magana relies upon People v. Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the court held that imposing assessments pursuant to section 1465.8, subdivision (a) (court operations) and Government Code section 70373 (court facilities) without a hearing on the defendant's ability to pay violates due process of law pursuant to the federal and state constitutions. (Dueñas, at p. 1168.) Neither statute expressly prohibits the trial court from considering the defendant's ability to pay. Pursuant to section 1202.4, subdivisions (b)(1) and (c), the court is expressly prohibited from considering the defendant's ability to pay in imposing a restitution fine unless the fine imposed exceeds $300. Dueñas holds that the court must stay execution of the restitution fine unless or until the prosecutor demonstrates that the defendant has the ability to pay. (Id. at p. 1172.)
In this case, the trial court imposed a $40 assessment pursuant to section 1465.8, subdivision (a), a $30 assessment pursuant to Government Code 70373, and a $300 restitution fine pursuant to section 1202.4, subdivision (b). The court also imposed and suspended a $300 parole revocation restitution fine. (§ 1202.45.)
The trial court also sentenced Magana in three other unrelated cases. The court imposed restitution fines of $300 in each of those cases.
Magana did not object to these financial penalties and fines in the trial court nor did he request an ability-to-pay hearing. Failure to challenge the assessments and fines imposed at sentencing precludes doing so on appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 868-869 [challenge to probation-related costs and fees paid to trial counsel].) In People v. Castellano (2019) 33 Cal.App.5th 485, the court excused the defendant's failure to raise the issue in the trial court. Castellano reasoned that the defendant's challenge is based on a newly announced constitutional principle that could not have been reasonably anticipated at the time of trial. (Id. at p. 489.) People v. Frandsen (2019) 33 Cal.App.5th 1126 reached a different conclusion. (Id. at p. 1155 ["traditional and prudential virtue" requires parties to raise issue in the trial court prior to seeking appellate review].)
It is understandable that trial counsel representing criminal defendants in cases prior to Dueñas were more concerned with issues of guilt and sentencing than in court assessments and restitution fines, particularly in the case before us with a lengthy sentence.
Nevertheless, as Frandsen points out, although this issue may have been slowly simmering on the backburner, it was there to be raised. Magana has forfeited this argument. (People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeits issue by failing to object to imposition of restitution fine based on inability to pay]; People v. Torres (2019) 39 Cal.App.5th 849, 860 [appellant failed to object to $10,000 restitution fine and may not now complain regarding court security and criminal conviction assessments]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [forfeiture of ability-to-pay argument by failure to object].) "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (People v. Frandsen, supra, 33 Cal.App.5th 1126, 1154.)
During sentencing of Ruiz, the trial court overlooked imposing restitution fines and statutorily mandated assessments. The minute order and abstract of judgment, however, recite a $300 restitution fine, a $300 parole revocation restitution fine (suspended), a $40 court security assessment, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) Given the imposition of similar fines and assessments on Magana immediately preceding sentencing of Ruiz, we remand this matter to allow the court to clarify its intentions. (People v. Smith (1983) 33 Cal.3d 596, 599 [whether clerk's minutes prevail over oral pronouncement of judgment dependent upon circumstances in each case]; People v. Waldie (2009) 173 Cal.App.4th 358, 367-368 [remanding to clarify inconsistencies regarding restitution orders].) On remand, Ruiz will have an opportunity to raise an ability-to-pay argument.
Correction of Minute Order and Abstract
Magana points out that the trial court sentencing minute order and the abstract of judgment contain the following errors: 1) they purport to impose a sentence of 25 years to life for the criminal street gang enhancement; 2) the abstract of judgment neglects to add the firearm enhancement for count 2, shooting at an inhabited dwelling; 3) the abstract of judgment states that he was sentenced pursuant to the three strikes law; and 4) the abstract of judgment recites restitution payable to "Nathan Stevens" (a stranger to the prosecution) and, falsely, that Magana has a history of drug abuse.
The Attorney General concedes and adds that the abstract of judgment must be corrected to add a minimum period of 15 years before parole eligibility pursuant to section 186.22, subdivision (b)(5), and that the firearm enhancement for shooting at an inhabited dwelling must be added (count 2). The Attorney General's added corrections also apply to Ruiz's abstract of judgment and the court's minute order in his case. In addition, the minute order in Ruiz's case incorrectly recites a 20-year-to-life firearm enhancement for count 5 (assault on a police officer) rather than 20 years, and the abstract of judgment omits the sentence imposed but stayed on count 7.
Upon remand, the trial court shall correct these errors in order that the judgments imposed reflect the oral pronouncements at sentencing. (People v. Delgado (2008) 43 Cal.4th 1059, 1070 [abstract of judgment cannot prevail over oral pronouncement of judgment], superseded by statute as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795; People v. Zachery (2007) 147 Cal.App.4th 380, 389 [the abstract of judgment cannot add to or modify the oral pronouncement of judgment].)
We reverse and remand Ruiz's judgment for resentencing and correction of errors in the trial court's minute order and abstract of judgment as set forth herein. We otherwise affirm.
We order the correction of errors in the trial court's minute order and abstract of judgment regarding Magana's judgment as set forth herein. We otherwise affirm.
In each case, following correction, the trial court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P. J. I concur:
PERREN, J. TANGEMAN, J., Concurring and Dissenting:
I agree with the majority opinion in all respects but one: I disagree with their conclusion, in Part VII., Ability to Pay, that Magana (but not Ruiz) forfeited his claim that he is entitled to a hearing on his ability to pay the fees imposed pursuant to Government Code section 70373 and Penal Code section 1465.8 because he (like Ruiz) did not object to those fees in the trial court.
At the time appellants were sentenced, the cited statutes virtually precluded any objections to the imposition of the fees they mandated; thus, a due process objection would have been either futile or wholly unsupported by substantive law. I disagree that the result in Dueñas was somehow foreseeable.
As eloquently stated in People v. Black (2007) 41 Cal.4th 799, 812: "The circumstance that some attorneys may have had the foresight to raise this issue does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated" the change in law. In Black, our Supreme Court held that there was no forfeiture where a defendant failed to object in the trial court that he was entitled to a jury trial on sentencing issues based on an argument later accepted by the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296. This was so, held the court, even though the Blakely opinion relied on "longstanding precedent" (id. at p. 305).
Based on law in existence when appellants were sentenced, Dueñas was surely as unforeseeable as was the holding in Blakely. Accordingly, I agree with and would follow People v. Castellano (2019) 33 Cal.App.5th 485, 489, and remand for an ability-to-pay hearing for both appellants (and not just Ruiz).
NOT TO BE PUBLISHED.
TANGEMAN, J.
Ryan J. Wright, Judge
Superior Court County of Ventura
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Omar Hernandez Ruiz.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant Franky Magana.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.