Opinion
F079590
04-29-2022
THE PEOPLE, Plaintiff and Respondent, v. STACEY ADAM SANGO, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Opinion after recalling remittitur and vacating opinion filed on 10/8/21
APPEAL from a judgment of the Superior Court of Fresno County No. F18905120. F. Brian Alvarez, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
Stacey Adam Sango was convicted by jury of assault with force likely to cause great bodily injury. Originally, he challenged that conviction claiming the trial court erroneously excluded evidence relevant to determining the force with which he committed the assault. He also took issue with certain fines and fees imposed as part of his sentence. We affirmed.
After the original opinion was filed, Sango moved to recall the remittitur and petitioned for rehearing contending newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §§ 1-1.3) (SB 567), which requires most sentence-aggravating factors to be proven beyond a reasonable doubt, applies retroactively to his case. He claims, under the new law, the trial court could not have relied on certain aggravating factors in pronouncing judgment because they were not proven beyond a reasonable doubt.
We granted the motion to recall the remittitur and solicited additional briefing from the parties relative to SB 567. The People agree with Sango that SB 567 applies retroactively, but dispute relief. We conclude SB 567 applies retroactively but warrants no relief in this matter, reiterate our original conclusions, and affirm the judgment.
BACKGROUND
Charges
The Fresno County District Attorney charged Sango with two crimes, felony domestic violence (Pen. Code, § 273.5, subd. (a); Count 1) and felony assault (§ 245, subd. (a)(4); Count 2). The charges included enhancements for great bodily injury (§ 12022.7) and various prior convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667, subd. (a).)
Undesignated statutory references are to the Penal Code.
Trial Evidence
The victim testified she was involved in a friendly, sometimes sexual, relationship with Sango. Late one evening, Sango arrived at the victim's apartment. An altercation occurred and Sango "punched" the victim "in [the] face" with "full force." She suffered a broken jaw.
Sango testified and admitted striking the victim. He claimed, however, he merely "slapped" her in an attempt to "get her out [of] the way." He denied hitting her forcefully.
Sango testified he swung at the victim "because [he] didn't want to have [to] deal with her" if he needed to "fight" another male in the apartment. He acknowledged the other male "didn't do anything physical … at all."
Verdict and Sentence
Sango was acquitted of felony domestic violence (Count 1) and found guilty of battery and assault with force likely to cause bodily injury (Count 2). The jury found true the great bodily injury enhancement, and the court later found true the prior convictions. Sango was sentenced to serve 16 years in state prison.
Battery was a lesser included offense to Count 1.
As part of the sentence, the court imposed several monetary obligations after considering Sango's "ability to pay" and "ability to earn income in the custodial facility …." Those obligations included paying a $4,000 restitution fine, a $40 operation fee, and a $30 conviction fee.
These fines were imposed pursuant to sections 1202.4, 1465.8, and Government Code, section 70373, respectively.
ANALYSIS
On appeal, Sango claims the trial court erred in excluding evidence the victim suffered from brittle bones due to methamphetamine use. He also challenges the above-described fines and fees. Last, he contends SB 567 necessitates reversing the judgment and remanding for further proceedings. We find no merit in any of his contentions.
I. The Evidence Was Properly Excluded
Sango argues the "jury should have been allowed to consider evidence suggesting [the victim] had unusually brittle bones [due to methamphetamine use] because it was relevant to the amount of force [he] used when he hit her." We disagree. While "unusually brittle bones" is certainly relevant to the force necessary to break such a bone, there was no evidence the victim's bones were brittle.
A. Additional Background
In excluding the evidence at issue, the court stated, "[T]here's been no evidence of" the victim suffering from "weakened jawbones." "[F]or that reason" the court found the evidence "irrelevant." Alternatively, it found "lack of foundation" because there was no evidence the proffered witness "ha[d] any expertise in osteopathy."
Sango sought to introduce this evidence through an emergency room physician who testified at the trial.
B. Analysis
"Relevant evidence is that which has 'any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) Relevance is established when the evidence tends '"' "logically, naturally, and by reasonable inference" '"' to establish material facts, such as motive, intent, or identity. [Citation.] When the relevance of proffered evidence depends on the existence of a disputed material fact or facts, the proponent of that evidence bears the burden of establishing all preliminary facts pertinent to the question of relevance. (Evid. Code, § 403, subd. (a)(1); People v. Kaurish (1990) 52 Cal.3d 648, 693.) The disputed evidence is inadmissible unless the court finds evidence sufficient to sustain a finding that those pertinent preliminary facts exist. (Evid. Code, § 403.) The trial court is accorded broad discretion in determining the relevance of evidence." (People v. Lucas (2014) 60 Cal.4th 153, 229.)
"We review a trial court's rulings on the admission and exclusion of evidence under the abuse of discretion standard." (People v. Thompson (2010) 49 Cal.4th 79, 128.)" '[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.'" (People v. McDowell (2012) 54 Cal.4th 395, 430.) " '[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn.11.)
There is no error in this case. The court concluded the evidence was irrelevant because there was no preliminary evidence the victim suffered from the condition Sango alleged. This conclusion is eminently reasonable.
Sango faults the trial court for not holding an evidentiary hearing (Evid. Code, § 402) regarding this evidence. His counsel, however, did not request a hearing, and the court had no duty to hold one. (David v. Hernandez (2017) 13 Cal.App.5th 692, 700.)
Sango's attempt to establish the victim suffered from brittle bones due to methamphetamine use was based on pure speculation." '[S]peculation is not evidence ….'" (People v. Waidla (2000) 22 Cal.4th 690, 735.) Accordingly, the court did not abuse its discretion and Sango's challenge fails.
To be fair, there was some evidence relating to tooth decay. There was not, however, any evidence relating to its cause.
II. The Fines and Fees Were Properly Imposed
"[A] defendant bears the burden of proof on [ability to pay]. [Citations.] Thus, … upon proper objection, the court must hold a hearing at which defendant will have an opportunity to bear his burden of proof on the issue of ability to pay." (People v. Cowan (2020) 47 Cal.App.5th 32, 49-50 (Cowan).) "[A] defendant forfeits a challenge to the trial court's imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court." (People v. Smith (2020) 46 Cal.App.5th 375, 395.)
Here, "[b]ecause the [$4,000] restitution fine the trial court imposed far exceeded the statutory minimum of $300, [Sango] had the opportunity to argue he was unable to pay it, but he did not. By failing to object and argue he did not have the ability to pay the … restitution fine, [Sango] forfeited the argument the court violated his constitutional rights by imposing the fine without considering his ability to pay." (People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033.) "By failing to object to the [$4,000] restitution fine … [Sango] left no doubt he would not have challenged the much lower assessments …." (Id. at p. 1034.)
In setting a restitution fine above the statutory minimum, a trial court is required to consider "the defendant's inability to pay ..." (§ 1202.4, subd. (d).)
In any event, the trial court expressly considered ability to pay in setting the restitution fine. Although Sango takes issue with the court considering future ability to pay, such consideration is proper. (Cowan, supra, 47 Cal.App.5th at p. 49.) We find no error in the court's decision to impose these fines and fees.
Sango bases his argument on People v. Dueñas (2019) 30 Cal.App.5th 1157. He was sentenced after that case was decided.
Sango criticizes the trial court for "[s]peculati[ng]" about "earn[ed] wages [in] prison …." He also describes prison wages as "paltry …." Frankly, paltry might well fairly describe the wages, but we cannot conclude the court denied Sango due process in considering them. Finally, despite mentioning the Eighth Amendment, Sango makes no attempt to flesh out any specific violation. We decline to address the claim. (Hoffman v. Young (2020) 56 Cal.App.5th 1021, 1029 [unsupported appellate arguments are waived].) Nonetheless, an approximately $4,000 total fine is not disproportionate to a broken jaw. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 [proportionality is the touchstone of Eighth Amendment analysis]; see People v. Potts (2019) 6 Cal.5th 1012, 1056 [$10,000 restitution fine not invalid due to inability to pay].)
III. SB 567 Applies Retroactively But Does Not Merit Remand
SB 567, enacted after the sentencing hearing in this case, recently amended section 1170. As relevant, it now reads:
"(b)(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
"(3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions." (§ 1170, subd. (b)(2)-(3).)
Sango claims this amendment applies retroactively on appeal. The People concede but argue remand is unnecessary because the trial court appropriately relied on Sango's criminal history.
We accept the People's concession SB 567 applies retroactively. (See People v. Lopez (2022) 73 Cal.App.5th 1032, 1039 [SB 567 applies retroactively].) Instead, we focus on whether the record in this case justifies relief. We conclude any error in sentencing is harmless beyond a reasonable doubt.
A. Additional Background
Sango's criminal history appears at various points throughout the record. We summarize the relevant evidence.
During the jury trial, Sango testified, "I've been convicted of, um, possession for sales of methamphetamine." Later, he stated, "Um, the month of June, I -- I was incarcerated for a probation violation thing. So I was gone the whole month of June. I was incarcerated for the month of June."
After the verdict was rendered, the court held a trial on the prior conviction allegations. The People introduced certified prison records describing Sango's "Chronological History/Movement History" within prison. The history section revealed numerous prison commitments and parole violations.
The prison records also included three abstracts of judgment indicating six prior felony convictions. The court found true beyond a reasonable doubt Sango suffered "four prior robbery convictions …."
The four robbery convictions occurred in the same case on a single abstract of judgment, but apparently on more than one occasion, thus properly qualifying as separate priors under the Three Strikes law. The other two abstracts are not relevant.
At the sentencing hearing, Sango testified he was incarcerated in 2010 for "possession for sales" and then "went back" for "possession … but that case was Prop 47." He said his "last time in prison … was 2012."
"Prop 47" likely refers to section 1170.18, which provides for redesignating many felony drug possession crimes to misdemeanors.
Next, the court stated, with reference to striking prior convictions, the "[f]actors [it] is considering is Mr. Sango's priors commitments in the state prison that are six prior prison commitments notwithstanding his later relief under Prop 47. He's had 11 parole violations while on some form of supervision or parole. He's had 26 misdemeanor convictions. And he has a prior domestic violence conviction in 1997 which the parties seem to agree, and the Court does likewise, that this is a violent conviction even though it's a misdemeanor." Nonetheless, the court did strike three prior robbery convictions.
Last, the court pronounced judgment and stated it "has considered the circumstances in aggravation and in mitigation as follows:
"The Court notes that Mr. Sango's prior convictions as an adult or sustained petitions in juvenile delinquency proceeding are numerous and increasing in seriousness. Mr. Sango has served prior terms in a penal institution. He was on a grant of informal probation when this offense was alleged to have occurred, as I understand it, for a violation of
Penal Code Section 148. And his prior performance on probation or parole was not satisfactory. Accordingly, the Court will find that the appropriate term for Mr. Sango is the upper term, and the upper term in this particular case being eight years for the violation of Penal Code Section 245(a)(4)."
Adding in the enhancements, Sango was sentenced to serve 16 years in prison.
B. Analysis
Sango argues, "Under SB 567, [his] prior convictions (excluding the convictions found true during the bench trial) and his poor performance on parole had to be proven to the jury …." He concludes remand is warranted because "[t]here is no way to determine the trial court would have imposed the upper term without these factors in aggravation."
The People contend remand is unwarranted. They believe "the trial court properly relied upon [Sango's] extensive criminal history, finding that he had suffered five prior felony convictions and 2[6] misdemeanors, he had served six prior prison commitments, he had incurred 11 parole violations, and he was on a grant of probation when he convicted the instant offenses." According to them, Sango "has already received the process he seeks on remand: a trial court found the aggravating factors-his prior convictions-true beyond a reasonable doubt."
Our review of the record does not reveal any specific finding of five prior felony convictions.
The People also claim "the trial court … properly relied on the fact that [Sango's] prior performance on probation and parole was unsatisfactory. The probation report reflects that appellant had sustained 11 parole violations and was on a grant of probation when he committed the instant offenses. And, when [Sango] testified at trial, he admitted that he had previously incurred a probation violation resulting in his incarceration. Thus, the right to a jury trial does not apply because the probation report reflected that appellant had incurred convictions while on probation and parole."
A probation report, filed pursuant to section 1203, documents these facts.
While we agree the court erred had SB 567 been enacted at the time of sentencing, we find the error harmless beyond a reasonable doubt. We pause, however, to note the People's argument goes too far in certain respects.
Section 1170, subdivision (b), requires all "circumstances in aggravation" to be proven beyond a reasonable doubt at a trial prior to use in justifying an upper term sentence, except a court may still consider "prior convictions" based on a "certified record of conviction …." The only prior convictions proven beyond a reasonable doubt in this case were Sango's four prior robberies. Much more, however, was found as an aggravating circumstance.
A defendant may also stipulate to circumstances in aggravation.
As noted, the trial court found "numerous and increasing in seriousness" prior convictions, prior prison commitments, unsatisfactory "prior performance on probation or parole," and current probationary status all as facts in aggravation. Although it is true Sango testified to at least one prior felony conviction, and incarceration "for a probation violation thing," there were no specific findings made regarding these statements.More importantly, other facts involving misdemeanor convictions, prison commitments, and parole violations were not discussed at trial.
For example, incarceration often attends a probation violation because probation is regularly revoked upon a violation allegation. But incarceration itself says nothing regarding the allegation's ultimate resolution.
To be sure, the history section in Sango's prison records is consistent with multiple prison commitments and parole violations. But it is unclear whether the history section included in the prison records here is a "certified record of conviction" within the meaning of section 1170, subdivision (b). What is clear, however, is the People's reliance on a probation report is not permitted by statute. Ultimately, we need not resolve any foundational issues relative to what section 1170, subdivision (b), either permits or prohibits because, as explained below, any error in this case is harmless.
The parties neither brief nor raise the issue. Section 969b permits admitting prison records into evidence but does not otherwise define record of conviction. We doubt a certified chronological history detailing movements within prison is a record of conviction but ultimately need not decide the issue.
"The denial of the right to a jury trial on aggravating circumstances is review[able]" for "harmless error …." (People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval).) "[A] single aggravating circumstance … make[s] [a] defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) "[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury's verdict would have authorized the upper term sentence." (Sandoval, supra, at p. 838.)
Here, the trial court found multiple prior convictions true beyond a reasonable doubt. There is no reason to believe a jury would find otherwise. Accordingly, Sango was eligible for the upper term and any error is harmless beyond a reasonable doubt.
To the extent Sango might argue striking prior convictions and then using them as aggravating factors runs afoul of the dual use prohibition (§ 1170, subd. (b)(5)), he would be mistaken. Sango's four prior robberies subjected him to a 25-year-to-life sentence under the Three Strikes law. The court struck three prior robberies then found multiple prior convictions as a factor in aggravation. This is consistent with the law. (People v. McFearson (2008) 168 Cal.App.4th 388, 392; Cal. Rules of Court, rule 4.420, subd. (g).) In any event, the unsatisfactory parole and probation factors also appear beyond reasonable debate because they were based largely on recidivism evident in the record. (See People v. Towne (2008) 44 Cal.4th 63, 82.) Even considering the differing incentives and lack of equal opportunity to contest the factors (see Sandoval, supra, 41 Cal.4th at pp. 839-840), we see no reason a jury would not find these factors proven true beyond a reasonable doubt.
By error we only mean noncompliance with SB 567, which was not enacted at the time of sentencing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: POOCHIGIAN, ACTING P. J., SMITH, J.