Opinion
F060722 Super. Ct. No. F09905025
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. LAURO SANCHEZ Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Lauro Sanchez appeals from his attempted murder with deliberation and premeditation conviction and sentence asserting: 1) insufficient evidence supports the jury finding that he acted with premeditation and deliberation; and 2) the trial court improperly imposed a probation report fee without first making a determination that defendant had the ability to pay. For the reasons discussed below, we affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
On Monday morning, March 9, 2009, Corina Hernandez was in the back office of one of the two grocery stores she co-owned with her husband, taking account of the receipts and money accumulated over the prior weekend. She believed 20 to 30 thousand dollars in cash was on her desk at that time.
Margarita Medina, the cashier at the front register, informed Hernandez that a regular customer had a check he wished to cash. Check cashing was a service Hernandez provided to regular customers. Hernandez told Medina to let the customer come back to her office.
The regular customer, however, turned out to be defendant, whom Hernandez recognized from her previous encounter with him a day or two prior when he had first come in to ask about cashing a personal check. Hernandez denied defendant that service on that day despite his pleas of urgency and necessity because, as a matter of policy, she only cashed checks for regular customers and she did not know defendant. Although he had questioned why she would not cash his check when he knew she frequently cashed the checks of one Wilber Galvez, defendant left without incident.
On this Monday, however, Hernandez became fearful once she realized who the "regular customer" was. Defendant stepped into her office, immediately closed the door behind him, and told her he had come for money.
Hernandez stood up from her chair and tried to protect the money on her desk. She struggled with defendant, breaking a fake fingernail in the process. Defendant reached into his waistband and pulled out a gun. He pushed Hernandez back into her chair. He held the barrel of the gun to the left side of Hernandez's forehead. Hernandez raised and flapped her arms in response to seeing the gun. Without saying another word, defendant pulled the trigger, and seconds later, pulled the trigger again. One bullet entered Hernandez's head above her left eye, and exited behind her left ear. Another bullet went through the office wall and into the ceiling outside the office. Defendant grabbed some money from the desk and fled the office, closing the door behind him.
As defendant was running through the store, he came face to face with Medina who, after hearing the gunshots, was walking back to see what was going on. Defendant held his midsection and ran past her. Another customer saw defendant run out of the store and to a waiting truck. Defendant got in on the passenger side, and the truck quickly left the scene.
Defendant was apprehended in New Jersey and returned to California. He was charged with attempted deliberate and premeditated murder (count 1), second degree robbery (count 2), and assault with a firearm (count 3). As to counts 1 and 2, the People alleged personal use of a firearm proximately causing great bodily injury and personal infliction of great bodily injury. As to count 3, the People alleged personal use of a firearm and personal infliction of great bodily injury. A jury convicted defendant on all counts and found all enhancements true. The trial court sentenced him to life with the possibility of parole on count 1, plus 25 years to life for personal use of a firearm proximately causing great bodily injury. The sentences on the remaining counts and enhancements were stayed. The trial court also imposed a $296 presentencing probation report fee pursuant to Penal Code section 1203.1b, subdivision (a) (hereafter section 1203.1b(a)).
DISCUSSION
I. Sufficient evidence supports the jury's finding of premeditation and deliberation.
Defendant asserts insufficient evidence supports a finding he acted with premeditation and deliberation because he manifested no behavior indicating calm reflection before he shot Hernandez in the head. Defendant more specifically argues his actions do not lead to the inference he had a preconceived plan to kill Hernandez, that the firing of two shots does not indicate premeditation, and that his use of lethal force in response to resistance was instantaneous and reflexive, rather than thought out. He asks this court to reduce his conviction to that of simple attempted murder and remand for resentencing.
The People counter that sufficient evidence supported the jury's finding, namely that defendant entered the store possessing a loaded gun after putting in place an escape plan.
In considering defendant's claim of insufficiency of the evidence, we review the whole record in the light most favorable to the judgment for substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[We] presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "We do not substitute our judgment for that of the jury." (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.)
"'The test on appeal is whether a rational juror could, on the evidence presented, find the essential elements of the crime—here including premeditation and deliberation— beyond a reasonable doubt.' [Citation.] A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner. [Citations.]" (People v. Romero (2008) 44 Cal.4th 386, 400-401, citing People v. Anderson (1968) 70 Cal.2d 15, 27.) "[T]hese [Anderson] factors need not all be present, or in any special combination; nor must they be accorded a particular weight. [Citation.] Rather, the Anderson factors serve as an aid to reviewing courts in assessing whether the killing was the result of preexisting reflection. [Citation.]" (People v. Garcia, supra, 78 Cal.App.4th at p. 1427.)
"[I]t is important to keep in mind that deliberation and premeditation can occur in a brief period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citation.]" (People v. Garcia, supra, 78 Cal.App.4th at pp. 1427-1428.) Attempted deliberate and premeditated murder requires the same finding of premeditation and deliberation as does the completed crime. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.)
Here, the record reveals substantial evidence from which the jury could infer defendant's premeditation and deliberation, as shown by his planning, motive, and the manner in which he attempted to kill Hernandez. First, as to planning, defendant brought a loaded gun to the store and shot Hernandez, who was unarmed, almost immediately after entering the back office. Having visited previously, defendant knew there was easy access from the store to the office, and he planned a quick getaway, even enlisting an accomplice. (See People v. Miranda (1987) 44 Cal.3d 57, 87 [fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance], abrogated on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4; People v. Romero, supra, 44 Cal.4th at p. 401 [jury could infer planning from defendant's bringing gun to the video store where, without any warning or apparent awareness of the impending attack, victim was shot in the back of the head].)
As to motive, defendant had attempted to cash a check with Hernandez but was denied only a day or two prior. Defendant told Hernandez he needed the money urgently. He walked in on the day of the shooting and immediately demanded money. Thousands of dollars were on Hernandez's desk in plain view. The jury could have reasonably inferred defendant intended to rob Hernandez and deliberately decided to kill her to prevent her from stopping him. (See People v. Miranda, supra, 44 Cal.3d at p. 87 [motive where victim had refused to sell defendant beer just prior to defendant shooting victim].)
Finally, the manner and circumstances of the incident also indicate premeditation and deliberation. Defendant closed the door immediately after walking in, ensuring that he and Hernandez were alone. He pulled the gun from his waistband and pushed Hernandez into her chair. He made no further demands from Hernandez before putting the gun to her head. Defendant shot the gun twice at close range, with several seconds passing between shots. His actions support the inference he was not acting solely to obtain the money by scaring Hernandez into giving it to him, or was acting out of a rash impulse; but rather, he had formulated a calculated decision to end her life. (See People v. Romero, supra, 44 Cal.4th at p. 401 [premeditation supported where victim was killed by a single gunshot fired from a gun placed against his head, execution style, without struggle and unprovoked].)
Substantial evidence supports the jury's finding that defendant acted with premeditation and deliberation.
II. Defendant failed to object to the probation report fee at his sentencing hearing; his claim on appeal is forfeited.
Defendant contends the trial court erred in imposing the $296 probation report cost reimbursement fee pursuant to section 1203.1b(a). He challenges the imposition of the fee on grounds the trial court failed to make a finding defendant had the ability to pay the fee, and that insufficient evidence supports such a finding in the first place. Defendant further argues the trial court failed to make a finding the fee was the "actual average cost" of preparing the report in accordance with section 1203.1b(a). Defendant asks that we remand the matter back to the trial court for a determination of his ability to pay and the actual cost of the report.
The People, relying on People v. Valtakis (2003) 105 Cal.App.4th 1066, contend that defendant forfeited his claim by failing to object to imposition of the fee at the sentencing hearing. Defendant, relying primarily on People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), asserts the claim remains cognizable on appeal because he need not have objected where the issue is one of sufficiency of the evidence.
The probation officer's report recommended imposition of a $296 fee pursuant to Penal Code section 1203.1b. The trial court at sentencing asked defense counsel if he had any additions or corrections to the report and recommendation. Counsel replied in the negative. When asked if he had any argument on defendant's behalf, defense counsel made brief remarks that defendant maintained his innocence, and made no mention of any fees, fines, or cost reimbursements recommended by the probation report, nor any mention of defendant's assets, lifestyle, or other circumstances that would indicate he could or could not pay the amounts recommended in the probation officer's report. The trial court then imposed the $296 probation report fee. Defendant made no objection or comment at that time.
Section 1203.1b(a), as applicable here, imposes upon the probation officer the duty to determine a defendant's ability to pay "all or a portion of the reasonable cost of . . . conducting any presentence investigation and preparing any presentence report . . . ." The statute also imposes a duty upon the trial court: to "order the defendant to appear before the probation officer . . . to make an inquiry into the ability of the defendant to pay all or a portion of these costs." (Ibid.) The trial court's role does not end there. The probation officer must inform the defendant that he or she is entitled to a hearing where the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant can forgo the right to a court determination by a knowing and intelligent waiver. (Ibid.)
"[F]ailure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Additionally, claims that a sentence, though otherwise permitted by law, was "imposed in a procedurally or factually flawed manner" are forfeited on appeal when not raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.)
In Pacheco, the Sixth District concluded the defendant's claims that the trial court improperly imposed certain fees and fines, including a $64 monthly probation fee imposed under section 1203.1b, were cognizable as claims based on the insufficiency of the evidence to support the order notwithstanding the defendant's failure to object at sentencing. (Pacheco, supra, 187 Cal.App.4th at p. 1397.) In doing so, the court relied on two cases; People v. Viray (2005) 134 Cal.App.4th 1186 (Viray), and People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez). The Pacheco court's explanation as to the applicability of the logic and reasoning of Viray and Lopez—two cases involving imposition of attorneys fees—to the imposition of administrative fees shed little light on the analysis it undertook: "[T]hese claims are based on the insufficiency of the evidence to support the order or judgment. We have already held that such claims do not require assertion in the court below to be preserved on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 . . . [challenge to order to reimburse attorney fees based on insufficiency of evidence may be first asserted on appeal]; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537 [challenge to conditional order to pay attorney fees 'if appropriate' with no referral for ability to pay determination may be raised for first time on appeal].) Respondent offers nothing to convince us otherwise. We accordingly conclude that [defendant's] claims are not forfeited or waived on appeal and we will proceed to the merits." (Pacheco, supra, 187 Cal.App.4th at p. 1397.) We decline to rely on such conclusionary statements, as we do not find Viray or Lopez applicable to the circumstances before us.
In Viray and Lopez, the Sixth District found exceptions to the forfeiture rule, concluding that a defendant who fails to object to the imposition of a Penal Code section 987.8 court-appointed counsel cost reimbursement fee in the trial court is not barred from challenging the order on appeal. (Viray, supra, 134 Cal.App.4th at pp. 1214- 1217; Lopez, supra, 129 Cal.App.4th at pp. 1536-1537.) The Viray court, in concluding forfeiture did not apply, explained the rule could not be "rationally extended to bar objections to an order for reimbursement of counsel fees, for the reason that unless the defendant has secured a new, independent attorney when such an order is made, [defendant] is effectively unrepresented at that time, and cannot be vicariously charged with [defendant's] erstwhile counsel's failure to object to an order reimbursing his own fees." (Viray, supra, 134 Cal.App.4th at p. 1214.) In essence, the Viray court acknowledged a conflict of interest for an attorney as between an attorney's client and an attorney's employer should such attorney be required to object to an order concerning his own fees. (Id. at p. 1215.)
The Viray court itself relied on People v. Butler (2003) 31 Cal.4th 1119 to support its finding that claims of insufficient evidence require no objection below. The court in Butler concluded that an exception to the general forfeiture rule applied when a defendant appeals an HIV testing order on the grounds of an inadequate showing of probable cause for the testing. (Id. at p. 1126.) The court specifically limited its conclusion, though: "Our conclusion in this case is controlled not only by the specific terms of [Penal Code] section 1202.1 but also by the general mandate that involuntary HIV testing is strictly limited by statute. For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott [(1994)] 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal . . . ." (Id. at p. 1128, fn. 5.)
Lopez is factually inapposite. The defendant in Lopez was sentenced to state prison. (Lopez, supra, 120 Cal.App.4th at p. 1520.) The statutory language at issue contained a presumption of an inability to pay: Penal Code section 987.8, subdivision (g)(2)(B) states, in pertinent part, that, "[u]nless 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." On the issue of forfeiture, the Lopez court gave a cursory explanation for not finding forfeiture: "In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal." (Lopez, supra, 129 Cal.App.4th at p. 1537, citing People v. Rodriguez (1998) 17 Cal.4th 253, 262.) We find Rodriguez inapposite as well. It concerned a sufficiency of the evidence argument for a strike allegation. The court explained, "defendant could not waive his right to challenge the sufficiency of the evidence on which the allegation was found true until it was found true and, then, only by failing to file a timely notice of appeal. In this, however, he did not fail. Thus, the challenge to the sufficiency of the evidence is properly before us." (People v. Rodriguez, supra, 17 Cal.4th at p. 262, italics omitted.)
Here, unlike in Viray, there is no conflict of interest and, unlike in Lopez, there is no presumption of an inability to pay requiring a finding of "unusual circumstances" (Pen. Code, § 987.8, subd. (g)(2)(B)). Consequently, in the circumstances before us, we cannot agree with the holding in Pacheco, or its underlying reasoning.
We note a similar issue is under review by our Supreme Court. (People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513 [whether failure to object to imposition of a jail booking fee forfeited a sufficiency of the evidence of ability to pay claim on appeal].)
Moreover, concerns over judicial economy militate against finding tenuous support for overcoming the forfeiture rules laid out by our Supreme Court. (People v. Welch, supra, 5 Cal.4th 228; People v. Scott, supra, 9 Cal.4th at p. 353.) In a case upholding the forfeiture doctrine where the trial court had ordered the defendant to pay a restitution fine recommended by the probation report, the Third District noted, "[t]he purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided. [Citation.] The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law. [Citations.]" (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Moreover, "[a] challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial." (Id. at pp. 1468-1469.)
Accordingly, we find defendant's failure to object at sentencing to imposition of the fee under section 1203.1b(a) forfeited the claim on appeal.
DISPOSITION
The judgment is affirmed.
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DETJEN, J.
WE CONCUR:
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DAWSON, Acting P.J.
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POOCHIGIAN, J.