Opinion
G056389
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID KENNETH SMITH, Defendant and Appellant.
Helen S. Irza, 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, Arlene A. Sevidal, Collette Cavalier and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17HF1442) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Helen S. Irza, 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, Arlene A. Sevidal, Collette Cavalier and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
David Kenneth Smith was charged with making criminal threats in violation of Penal Code section 422. (All further statutory references are to the Penal Code unless otherwise stated.) Section 422 prohibits willful threats "to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety."
Before trial, the prosecutor moved to admit into evidence five videos found on Smith's YouTube channel, arguing the videos were probative of (1) Smith's intent in making the threatening statements, (2) the sustained fear of the victim, and (3) the reasonableness of the victim's fear. In arguing against admission of the videos, defense counsel offered to stipulate the victim was in sustained fear and the fear was reasonable under the circumstances. The prosecutor agreed to the proposed stipulation after some initial reluctance. After the trial court confirmed the stipulation between the parties, it ruled the videos were admissible to show Smith's intent. Before jury selection, defense counsel sought to withdraw the stipulation, but the trial court denied counsel's request. The jury convicted Smith of making criminal threats.
Smith contends the trial court abused its discretion in denying his request to withdraw the stipulation. Alternatively, he contends his trial counsel was ineffective in proposing the stipulation. We conclude there was no abuse of discretion. In any event, any conceivable error was harmless. For the same reasons, we conclude Smith has not demonstrated that any attorney error was prejudicial.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Smith also contends the trial court erred in imposing a restitution fine and assessments without holding a hearing on his ability to pay. We conclude any Dueñas error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Testimony
Wendy H. testified she worked with Smith at Soka University and wrote a recommendation letter for him when he applied for an on-campus job. After Smith graduated in May 2008, Wendy lost contact with him until he sent her an e-mail on October 31, 2017. In the e-mail, Smith wrote that "while I was at Soka, I was hounded mercilessly for purportedly smoking cannabis. Now, smoking cannabis is not only legal in California and many other states but considered to have numerous health and medical benefits . . . . [¶] So my question is, while I realize that different times were different times, . . . : Do you recognize any seed of activism on my part from that time? I never harmed anyone, and my whole life was penalized for doing something that is now completely legal. I left Soka University with no recommendations and no employment opportunities, the joke of the entire school. And now cannabis is legal!"
Wendy responded: "You may be surprised to hear that rules haven't changed on campus in regard to cannabis, which is still considered a controlled substance by the federal government. . . . [¶] I don't know if this helps put things in perspective, but my impression of you was always of someone who took initiative to write stories for the local paper and work on journalism skills and photography. I hope that your skills have served you well in becoming the person you want to be."
Smith replied that he "was not asking if the rules had changed or for ego affirmation; I was asking if you acknowledged that what I did while at your school was activism. Think carefully about your answer, as your reputation may be on the line."
Wendy did not respond, and Smith sent another e-mail, stating, "Here you go, Wendy! Check this out:" and attaching a link to a video. The video showed Smith with a gun on his chest. Under the video link, the e-mail continued: "I may be coming for a campus visit soon."
Wendy replied to Smith's second e-mail by stating she was not aware of his activism or his issues with cannabis. She forwarded the third e-mail with the video link to Soka's head of security because she "took it as [a] threat." In her e-mail to the head of security, Wendy stated, "Just got this . . . the video features David Smith (Class of 2008) with a gun (not sure if it's real) on his chest, telling a story about his issues with SUA [Soka University of America]. [¶] Feels creepy and mention of visit soon feels threatening."
The video was played for the jury. It is not one of the five videos referenced in the prosecution's pretrial motion.
Smith then sent another e-mail to Wendy: "Tell me, Wendy, are you a friend or not? Perhaps you have a private e-mail or phone where we could talk. After all, you did take it upon yourself to give me career advice before I left; maybe we should discuss how that worked out. [¶] Keep this up. I have nothing to lose. Don't admit that your school could have in anyway harmed one of its students. Perhaps I will come back and finally put your little campus on the map. You better hope things start going better for me, before I make some examples that no one will forget. Take accountability . . . after all, your administration has fired or caused every professor who might have given a recommendation to me to leave before I graduated. You should at least acknowledge that, before you motivate me to come visit and really start affecting your life of upper middle class bigotry. [¶] Love, David. [¶] I will be seeing you all very soon! Ha Ha."
After reading this e-mail, Wendy "took it as a threat" because "[i]t was very pointed, that he wanted - that he thought about coming to campus to put us all 'on the map.' And this is in an era of school shootings." Wendy immediately sent the e-mail to Soka's head of security.
On cross-examination, Wendy acknowledged Smith never directly stated in any of his e-mails that he was coming to the campus to harm anyone, but explained she became "scared" when she saw the video showing Smith with a gun on his chest. In light of the video, Wendy interpreted Smith's e-mails stating he was coming to campus "soon" and that he would put the campus "on the map" as a "threat" that he intended to harm her or students on campus.
Sandra Hawkins, an investigator with the Orange County Sheriff's Department, testified she reviewed Smith's e-mails to Wendy. Hawkins opined the e-mail stating Smith was coming to Soka to put it "on the map" was "threatening in nature."
Over defense counsel's objection, the following stipulation was read to the jury: "It is stipulated between both parties that the emails that the defendant sent to Wendy [H.] actually caused her to be in sustained fear for her own safety and that her fear was reasonable under the circumstances."
The prosecutor played for the jury the five videos that were the subject of the prosecution's pretrial motion. The court instructed the jury the videos were admitted for "the limited purpose of deciding whether the defendant acted with the intent that his statements be understood as a threat, and the defendant had a motive to commit the criminal threats in this case." B. New Trial Motion and Sentence
After his conviction, Smith filed a new trial motion, arguing the trial court should have permitted him to withdraw his stipulation because counsel understood (or misunderstood) the stipulation was made in lieu of admitting the videos into evidence. At the hearing on the new trial motion, defense counsel also argued the motion to withdraw the stipulation was timely because it was made before jury selection. The court denied the motion, concluding the defense did not "g[i]ve [away] very much" in "stipulating that the victim was in reasonable fear" and the stipulation "had a tactical advantage in terms of the motion." The court concluded it was a "fair deal. Both sides got something from it. It turned out a little differently than anticipated, perhaps, but it was a fair deal."
The trial court sentenced Smith to three years in state prison. It imposed a $300 restitution fine, and $70 total in assessments. The abstract of judgment reflects the $70 consists of a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373).
II
DISCUSSION
A. Stipulation
Smith contends the trial court erred in denying his pretrial request to withdraw the stipulation that Wendy was in sustained fear and her fear was reasonable under the circumstances. 1. Relevant factual background
As noted, before trial the prosecutor sought to introduce five videos that were between one and four minutes long and discussed mass shootings. The prosecutor argued the videos showed (1) Smith's intent in making the threatening statements, (2) the sustained fear of the victim, and (3) the reasonableness of the victim's fear. Defense counsel opposed the motion, arguing the videos were not relevant to show Smith's intent. Counsel continued: "But as far as 'sustained fear,' if they are going to come in with that, we'll stipulate that she [the victim] was in sustained fear. We really don't care about that, because our argument is essentially, that the intent of the email and the video was not a threat. So that alleviates having to bring those [videos] in."
The prosecutor initially was reluctant to agree to the proposed stipulation. As he later explained, the stipulation had been proposed before the trial court ruled on his motion. "I was caught a little off guard and wasn't sure if I want[ed] to do it, understanding that there was a risk involved." "For me, there was a risk because if I was taking away one of my arguments" for admitting the videos, "I thought there was a potential to weaken" the other argument for admitting the videos.
After a brief discussion, the prosecutor and defense counsel agreed to the proposed stipulation. After the trial court confirmed the stipulation with defense counsel, it ruled the videos were admissible.
When defense counsel sought to withdraw the stipulation, he stated: "That was a tactical decision I was trying to make, in hopes that that video or the other videos would not come in. [¶] I've since spoken with my client, and he - I would like to withdraw the stipulation. . . . I don't see a tactical advantage to stipulating, at this point." The prosecutor objected, arguing "we made the stipulation before there was a ruling from the court on the motion. And I think we both kind of have taken into consideration what might happen, not knowing what would happen, and factored that into the stipulation. [¶] We both sort of made a gamble on that stipulation, and I think it should stand."
The court asked defense counsel to respond: "Isn't he correct? It was a deal that would improve your chances for the motion, but might hurt your chances a little bit in terms of trial?" Counsel replied, "It was, your honor. [¶] And having thought about it more, I still think I should be able to withdraw it. My client is opposed to it. So that is my request. [¶] I think, given the court's questions when I was asking, I had anticipated a different outcome. [¶] But it was a gamble, I understand; so I'm still requesting it, despite that." The court denied the motion to withdraw the stipulation, concluding "a deal is a deal." 2. Analysis
"Evidentiary stipulations have long been recognized as tactical trial decisions which counsel has discretion to make without the express authority of the client." (People v. Adams (1993) 6 Cal.4th 570, 578.) "Either party may move the court to be relieved from the binding effect of a stipulation previously entered into, and it is within the sound discretion of the trial court whether or not such relief should be granted; in this regard the decision of the trial court will not be disturbed by an appellate court absent an abuse of discretion. [Citations.]" (People v. Trujillo (1977) 67 Cal.App.3d 547, 554-555.) "The grounds upon which the trial court may exercise its discretion are that the stipulation was entered into as the result of fraud, misrepresentation, mistake of fact, or excusable neglect [citations], that the facts have changed, or that there is some other special circumstance rendering it unjust to enforce the stipulation. [Citations.]" (Ibid.)
Smith contends defense counsel mistakenly believed he was entering into the stipulation in exchange for the exclusion of the five videos. The record does not support Smith's contention. Defense counsel admitted the decision to propose and enter into the stipulation was "a tactical decision I was trying to make, in hopes that that video or the other videos would not come in" and that the stipulation was a "gamble." When defense counsel proposed the stipulation, the trial court had not ruled on the admissibility of the videos. The record shows counsel entered into the stipulation hoping to weaken the prosecution's case for admission of the videos. The prosecutor had offered several reasons for admitting the videos, but the stipulation left the prosecutor with only one basis for admission. In short, the stipulation increased the risk to the prosecution the court would not rule in its favor on the videos. Defense counsel thus had a tactical reason for intentionally proposing the stipulation. Nothing suggests defense counsel entered into the stipulation because of mistake, excusable neglect, or inadvertence. Thus, although the motion to withdraw the stipulation was timely, Smith has not shown the trial court abused its discretion in denying the motion.
Smith also suggests the trial court had predetermined how it would rule on the motion before accepting the stipulation, arguing the court "effectively lured the defense into making the stipulation, knowing the videos would be admitted into evidence regardless." No evidence supports counsel's speculation.
In any event, any conceivable error in denying the motion to withdraw the stipulation was harmless. Although the victim did not testify she was in fear of her own safety or that her fear was sustained, the only reasonable inference from her testimony was that Smith's statements caused her to be in sustained fear for her own safety. On cross-examination, the victim testified that after viewing the video showing Smith with a gun on his chest, she interpreted his e-mails that he was coming to campus soon and would put the campus on the map as a threat to harm her or the students on Soka. When asked, "And in this email, did Mr. Smith state anything about coming to campus to actually harm anyone at the campus, including you?" she answered, "I took it as that intention." (Italics added.) She also testified she was "scared" and found the "words he used were threatening."
The record also showed the victim's fear was sustained. (See People v. Culbert (2013) 218 Cal.App.4th 184, 190 [fear is sustained if there is "evidence that the victim's fear is more than fleeting, momentary, or transitory"].) Here, the victim testified that Smith's e-mail about coming to campus was so threatening she forwarded it to the head of security. She remained in fear when Smith sent another e-mail about putting the Soka campus on the map and she forwarded that e-mail to security. Thus, the victim's fear was more than fleeting, momentary, or transitory.
Finally, there is ample evidence the victim's fear was reasonable under the circumstances. The victim testified that the threatening statements were made in an "era of school shootings." A third party who reviewed the e-mails opined Smith's statements were "threatening in nature." In sum, even had the trial court abused its discretion in denying the defense motion to withdraw the stipulation, the error was harmless.
For the same reasons, Smith has not demonstrated his attorney prejudicially erred in proposing and entering into the stipulation. (See In re Cox (2003) 30 Cal.4th 974, 1019-1020 [ineffectiveness claim may be resolved based on lack of showing of prejudice].) In light of the evidence presented to the jury, "we cannot find that there is a reasonable probability—i.e., a probability sufficient to undermine confidence in the outcome" - that the results would have been different. (In re Fields (1990) 51 Cal.3d 1063, 1080-1081.)
In Smith's reply brief, he argues it was structural error to enforce the stipulation over his objection. Smith arguably forfeited this argument because it was not raised in the opening appellate brief and is inconsistent with his argument that the court's error was "prejudicial under any standard." In any event, there was no structural error because the stipulation was not tantamount to a guilty plea, as it did not establish every fact necessary for a conviction under section 422. For example, the stipulation did not establish Smith's intent in making the threatening statements. By entering the stipulation, Smith did not "effectively surrender[] his privilege against self-incrimination, his right to confrontation, and his right to a jury trial." (People v. Farwell (2018) 5 Cal.5th 295, 300.) B. Dueñas Error
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Smith contends the trial court erred in ordering him to pay a restitution fine and court facilities and court operations assessments without conducting a hearing on his ability to pay that fine and those assessments. Assuming Dueñas applies, we conclude any error was harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones); People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).)
We note that several courts have disagreed with Dueñas. (See People v. Hicks (2019) ___ Cal.App.5th ___ ; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917; see also People v. Kopp (2019) 38 Cal.App.5th 47, 95-96 [disagreeing on restitution fines only].)
In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was unemployed, homeless, and the mother of young children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) At sentencing on a misdemeanor charge, she objected on due process grounds to the trial court's imposition of a $30 court facilities assessment, a $40 court operations assessment, and a statutory minimum $150 restitution fine. (Id. at p. 1162.) The trial court granted the defendant's request to hold a separate ability-to-pay hearing. The court considered the defendant's "uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously ordered attorney fees, and waived them on the basis of her indigence. The court concluded that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under . . . section 1465.8 were both mandatory regardless of [her] inability to pay them" (Dueñas, supra, 30 Cal.App.5th at p. 1163), and that she failed to show "'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving [the $150] fine. The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments." (Dueñas, at p. 1163.)
The Court of Appeal reversed, opining that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Moreover, when such fees are imposed on indigent defendants, the "additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.) The Dueñas court thus concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes assessments under section 1465.8 or Government Code section 70373. (Dueñas, at p. 1164.) It additionally determined courts must stay the execution of any restitution fine imposed under section 1202.4 "unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
Here, unlike in Dueñas, Smith never objected to the imposition of the restitution fine and assessments and did not seek a separate ability-to-pay hearing. Rather, he first raised the issue of his alleged inability to pay the fine and assessments in this appeal. The Attorney General contends Smith forfeited any challenge to the fine and assessments by failing to object or raise the issue below. Smith argues, however, the forfeiture rule should not apply because he raises a legal error and any objection would have been futile because his sentencing occurred before Dueñas. We need not determine whether Smith forfeited his claim of sentencing error because even if not forfeited, any Dueñas error is harmless beyond a reasonable doubt.
Based on the record, we infer that, unlike the probationer defendant in Dueñas, Smith has the ability to pay the $370 in fine and assessments, including from probable prison wages. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [concluding a fine imposed under section 1202.4 "may be based on the wages a defendant will earn in prison"]; § 1202.4, subd. (d) [noting the consideration of a "defendant's inability to pay may include his or her future earning capacity"]; Jones, supra, 36 Cal.App.5th at p. 1035 [noting prison wages range from a minimum of $12 to $56 per month depending on the prisoner's skill level].) The record does not disclose Smith suffers from any infirmity precluding him from work. Thus, he will be able to earn $432 in three years at $12 per month. "The idea that [Smith] cannot afford to pay $370 while serving [a three-year] prison sentence is unsustainable." (Johnson, supra, 35 Cal.App.5th at p. 139 [concluding that "because [defendant] has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt"]; Jones, supra, at p. 1036 [finding any Dueñas error harmless because defendant "will have sufficient time to earn these amounts during his sentence, even assuming [defendant] earns nothing more than the minimum."].) Accordingly, we find any Dueñas error to be harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.