Opinion
H044857
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT C. TOTH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160001A)
Defendant Robert C. Toth was convicted following a court trial of battery on a non-confined person by a prisoner (Pen. Code, § 4501.5), with a prior strike conviction (§§ 667, subds. (b)- (i), 1170.12, subd. (c)(1)).
All further unspecified statutory references are to the Penal Code.
On appeal, Toth argues there was not substantial evidence that he committed battery and he was denied effective assistance of counsel because his attorney did not present a closing argument at trial. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Toth argues the $30 court facilities fee (Gov. Code, § 70373), $40 court operations fee (§ 1465.8, subd. (a)(1)), and $300 restitution fine (§ 1202.4, subd. (b)), should be stricken because he is incarcerated and does not have the ability to pay.
We reject Toth's arguments and affirm the judgment.
I. STATEMENT OF THE FACTS AND CASE
In June 2015, V., who is a licensed clinical social worker with the California Department of Corrections and Rehabilitation, was at Salinas Valley State Prison to conduct a mental health evaluation of the inmate housed in cell 119. As V. stood in the hall in front of cell 119, he knocked on the door and began to talk to the inmate inside the cell. V. was speaking loudly to the inmate in cell 119 because the door to the cell was closed. Toth was in cell 118 at the time, which is next to cell 119 to the left of where V. was standing. V. knew Toth, and had never had a problem with him. V. felt liquid hit the left side of his face while he was talking to the inmate through the door of cell 119. As V. stepped back from the cell, the liquid continued to hit his body, and some of the liquid got into his mouth. V. saw that the liquid was being squirted out of a crevice in the corner of the door of cell 118.
V. backed away from the cell and blew his emergency whistle. Corrections officers arrived and took V. to the medical office. V. told Officer Trach Tran that the inmate in cell 118 had thrown liquid on him. Officer Tran approached cell number 118 and saw there was paper covering the window on the cell door in violation of the rules. Because of the paper on the window, Officer Tran could not see inside cell 118. Officer Tran told Toth to remove the paper from the window and asked him why he had "gassed" V. In response, Toth said: "I didn't know he was there. That's what you get for fucking with me."
V. was given a blood test for hepatitis, and the fluid that was on his clothing and face was tested. The fluid turned out to be water. V. washed his hands and face in the sink of the medical office. Toth was moved to a holding cell outside of the medical office. When he saw V., he said: "I'm sorry. I wouldn't do that to you."
Toth's cell was photographed following the incident. There was a milk carton in the sink area in the cell, and water on the floor around toilet/sink area. There was a rubber glove plugging up the toilet. One of the photographs showed a gap on the side of the door of cell 118 that was approximately one half an inch wide.
Toth said he was taking a "bird bath" in his cell at the time of the incident. Toth described "bird bathing" as a process of filling up a sink by plugging the drain and using a milk carton or cup to pour water on his body to wash himself. He said he does not bathe in the main shower because he is a transgender female. Toth covered the window on his cell door for privacy.
Toth said that at the time of the incident, he did not know V. was standing outside his cell door trying to talk to the inmate in cell 119, and he had no problem with V. Toth was trying to bathe and did not have anything in his cell that he could use to squirt water. Toth said that the space between the cell wall and the door was less than a quarter of an inch wide. Toth denied telling V. he was sorry, and also denied telling Officer Tran, "that's what you get for fucking with me." Toth said that V. dumped the water on himself with his own water bottle. Toth denied plugging his toilet with soap or rubber gloves.
In January 2016, Toth was charged with Count 1—battery on a non-confined person by a prisoner (§ 4501.5), with a strike allegation (§§ 667, subds. (b)- (i), 1170.12, subd. (c)(1)). Toth waived a jury and proceeded with a bench trial. At the conclusion of evidence, the trial court granted defense counsel's request to conduct a site visit at Salinas Valley State Prison in order to view the gap in the door of cell 118 and determine if liquid could pass though it as V. had described. The site visit was attended by the trial judge, defense counsel and the prosecutor.
At the site visit of Salinas Valley State Prison in May 2017, counsel and the judge visited cells 118 and 119. The prosecutor attempted to reenact the circumstances that led to water spraying out of cell 118, where Toth was housed, onto V., who was in the hall outside of cell 119. While inside cell 118, which had the door closed and was locked, the prosecutor used a milk carton similar to the one found on Toth's cell floor after the incident, filled it with water, put the carton against the gap in the door and squeezed the carton with his other hand. A large spray of water shot out from the gap in the door that almost hit the judge. The prosecutor repeated this demonstration, and the same result occurred.
The trial court found Toth guilty as charged, and found the allegation that Toth had a prior strike conviction true. The trial court sentenced Toth to the mitigated term of two years for Count 1, doubled to four years because of the prior strike, to run concurrent to Toth's current prison term with presentence custody credit.
The court imposed a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8, sub. (a)(1)), a $300 restitution fine (§ 1202.4, subd. (b)), and an additional $300 restitution fine (§ 1202.45), suspended unless parole is revoked. Toth filed a timely notice of appeal.
II. DISCUSSION
A. Substantial Evidence of Battery
The trial court found Toth guilty of violating section 4501.5, which states: "Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony . . . ." Toth asserts there was insufficient evidence that he intended to use force or violence upon the person of another.
When a defendant challenges the sufficiency of evidence on appeal, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment." (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
Section 242 defines battery as "any willful and unlawful use of force or violence upon the person of another." Battery is a general intent crime. (People v. Lara (1996) 44 Cal.App.4th 102, 107.) Battery cannot be found when the force or violence was accomplished with a lesser state of mind, such as criminal negligence. (Id. at p. 107.) "Thus, the crime of battery requires that the defendant actually intend to commit a 'willful and unlawful use of force or violence upon the person of another.' [Citations.]" (Ibid.) "In the case of simple battery, any force against the person is sufficient for a conviction. There need be no proof of an intent to injure, only an intent to commit the act." (People v. Lindsay (1989) 209 Cal.App.3d 849, 855 (Lindsay).)
Here, we find there is substantial evidence that Toth intended to commit a battery by squirting water out of his cell onto V. The site visit revealed a gap in the door to Toth's cell that was approximately one half inch wide, a space sufficient for a person in the cell to squeeze water through it. The location of the gap was such that if a person were to squeeze water through it, the water would spray and hit a person standing in hall outside of cell 118. Toth was the only person inside cell 118, which was next to cell 119. V. was standing in the hall outside of cell 119 at the time the water hit him. When V. was taken to the medical center for evaluation following the incident, Toth said to Officer Tran, "I didn't know he was there. That's what you get for fucking with me"
Toth's testimony at trial was not credible because it was refuted by other evidence. Toth said the gap in the cell door was too small to splash water through because it was less than a quarter of an inch wide. However, the site visit and photographs revealed that the gap was one half inch wide, and could be utilized to spray water outside the cell. Although Toth said there was no container in his cell that he could have used to spray water through the gap, there was a milk carton on the floor of his cell after the incident. In addition, Toth testified that he used a cup of water to give himself a "bird bath" that day, contradicting his earlier testimony that there was no container for water in his cell.
The evidence at trial supports Toth's conviction for violating section 4501.5. The conclusion that Toth intended to use force against V. is reasonable based on the evidence. Moreover, Toth's defense that splashing water on V. was the result of giving himself a bird bath was contradicted by the remaining evidence. The size and location of the gap between the cells, the milk carton on the floor of Toth's cell, Toth's statement to Officer Tran, and his apology to V. following the incident support the battery conviction in this case. There is ample evidence that Toth intended to commit the act of squirting the water on V. (See Lindsay, supra, 209 Cal.App.3d at p. 855.)
B. Effective Assistance of Counsel
Toth argues he was denied effective assistance of counsel because the trial court prevented his attorney from presenting closing argument at trial, and as a result, his conviction is reversible per se. Toth asserts in the alternative that his attorney was ineffective for failing to request closing argument.
The sentencing hearing in this case was over a year after the conclusion of the court trial. Toth waived his right to be present. Toth's trial counsel and the prosecutor were present. The court indicated that it was "prepared to render its decision. It's a decision of guilt based on both the evidence at trial and on the visit to the cell. So with that, do the parties wish to argue regarding sentencing? I believe it was a top of four years."
Following the trial court's statement, both counsel indicated they were prepared for sentencing in the case. The court imposed sentence and asked counsel if there was "[a]nything else?" to which defense counsel stated, "No, Your Honor." Neither attorney requested closing argument, nor did they object to the trial court proceeding with sentencing without hearing closing argument.
Toth argues the trial court's denial of an opportunity for defense counsel to present closing argument in his case was a violation of his Sixth Amendment right to counsel, and is reversible per se. In support of this argument, Toth cites Herring v. New York (1975) 422 U.S. 853 (Herring), in which the United States Supreme Court considered whether a New York statute that gave the trial court complete discretion to deny the opportunity to present closing argument during a court trial violated the defendant's right to counsel. The court found that while the trial court has discretion to control the duration or limit the scope of closing argument, the trial court's complete denial of closing argument violates the Sixth Amendment, stating: "a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense." (Id. at p. 859.)
Toth also cites In re William F. (1974) 11 Cal.3d 249, 253-256 (William F.), for the proposition that a court's limitation of closing argument is a violation of his constitutional right to the assistance of counsel. In William F., the juvenile court precluded counsel for the minor to present a closing argument at the conclusion of jurisdictional hearing. (Id. at p. 253.) The California Supreme Court found the juvenile court's refusal to allow the minor's counsel to present closing argument violated the minor's constitutional rights, was prejudicial per se, and reversed the judgment. (Id. at p. 255.)
Both William F. and Herring are inapplicable to the present case, because here, the trial court did not preclude defense counsel from presenting closing argument. The trial court indicated its intention to proceed with sentencing, but did not state that it would not consider closing arguments from the attorneys, nor did it deny a request from counsel to present closing argument. Therefore, there was no structural error in the trial that would require reversal per se. (See Herring, supra, 422 U.S. at p. 859; William F., supra, 11 Cal.3d at p. 255.)
In the alternative to his per se reversal argument, Toth asserts he was denied effective assistance of counsel because his attorney did not ask to present closing argument at the sentencing hearing. " 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] ... under prevailing professional norms." [Citations.]' " (People v. Lopez (2008) 42 Cal.4th 960, 966.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Errors in representation are not reversible unless defendant can show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different . . . . The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
Given this standard of prejudice, we cannot find a basis for reversal on the ground of ineffective assistance of counsel. The evidence at trial was significant, and closing argument by defense counsel would have made little, if any, difference in the outcome. The site visit to Salinas Valley State Prison was particularly informative. During the visit, counsel and the judge were able to see cell 118 and 119, and witness a demonstration of water being squirted from a milk carton through the gap in the door of cell 118. The results of his demonstration were consistent with V.'s description of the incident.
The information gleaned from the site visit, the physical evidence found at the scene, and the court's finding that Toth's testimony was not credible, support the conviction in this case. Based on the strength of the evidence, there is not a substantial likelihood that Toth would have been found not guilty had his counsel presented closing argument. Toth cannot establish that he was prejudiced by any potential error on the part of his attorney, and as a result, cannot show that he was denied the effective assistance of counsel. (Strickland, supra, 466 U.S. at p. 694.)
C. Fines and Fees
Toth was ordered to pay a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $300 restitution fine (§1202.4, subd. (b)), and an additional $300 restitution fine (§ 1202.45), suspended unless parole is revoked. Citing Dueñas, Toth argues the trial court violated his due process rights by imposing the fines and fees without determining his ability to pay. He requests that we strike the fines and fees because he is incarcerated and unemployed, and as a result, does not have the ability to pay.
1. People v. Dueñas
In Dueñas, Division Seven of the Second Appellate District considered how the "cascading consequences of imposing fines and assessments that a defendant cannot pay" can in effect punish a defendant for being poor. (Dueñas, supra, 30 Cal.App.5th at pp. 1163, 1166-1167.) The defendant in Dueñas was a homeless mother of two children, was unemployed and suffered from cerebral palsy. As a teenager, Dueñas began accruing fines for driving with a suspended license. Because of her inability to pay these fines, Dueñas would repeatedly serve time in jail in lieu of payment. (Id. at p. 161.)
When Dueñas was convicted of her fourth misdemeanor, she was placed on probation and, at her request, the trial court held a hearing on her ability to pay a court operations fee (§ 1465.8), a court facilities fee (Gov. Code, § 70373), a $150 restitution fine (§ 1202.4), and previously imposed attorney fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Since it was undisputed that Dueñas did not have the ability to pay, the trial court waived the attorney fees, but imposed the two fees and the restitution fine. The court found that the fees were statutorily required. Regarding the restitution fine, the trial court found that it was prohibited from considering Dueñas's inability to pay. (Id. at p. 1163.)
The Court of Appeal reversed, noting that " '[c]riminal justice debt and associated collection practices can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation.' " (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court concluded that section 1465.8, subdivision (a)(1), which is intended "[t]o assist in funding court operations . . .," and Government Code section 70373, which is intended to "[t]o ensure and maintain adequate funding for court facilities . . .," (Gov. Code, § 70373, subd. (a)(1)) effectively impose "additional punishment for a criminal conviction for those unable to pay." (Dueñas, at p. 1168.) Based on this conclusion, the court reasoned that imposing these assessments without a determination that the defendant has the ability to pay is "fundamentally unfair" and "violates due process under both the United States Constitution and the California Constitution. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.)" (Ibid., fn. omitted.)
Regarding the restitution fine under section 1202.4, subdivision (b), which is required to be imposed "[i]n every case where a person is convicted of a crime, . . . unless [the court] finds compelling and extraordinary reasons for not doing so and states those reasons on the record" (§ 1202.4, subd. (b)), the Dueñas court noted that the statute allows the court to consider a defendant's inability to pay only if it imposes a restitution fine in excess of the minimum (§ 1202.4, subd. (c)). As a result, the court concluded that section 1202.4 "punishes indigent defendants in a way that it does not punish wealthy defendants" because "a defendant who has successfully fulfilled the conditions of probation for the entire period of probation [generally] has an absolute statutory right to have the charges against him or her dismissed. (Pen. Code, § 1203.4, subd. (a)(1).)" (Dueñas, supra, 30 Cal.App.5th at p. 1170.) An indigent probationer who cannot afford to pay the restitution fine, and thus cannot fulfill the conditions of probation, will be denied that benefit solely because of his or her poverty. According to Dueñas, "[t]he statutory scheme thus results in a limitation of rights to those who are unable to pay," which is fundamentally unfair and constitutes a due process violation. (Id. at p. 1171.) The court concluded that while section 1202.4 requires the imposition of a restitution fine, it permits the court to stay the execution of such fine "until and unless the People demonstrate that the defendant has the ability to pay the fine." (Id. at p. 1172.)
2. Ability to Pay
The Attorney General asserts that Toth forfeited his challenge to the fines and fees because he did not object in the trial court. We need not reach this issue, because the record demonstrates that Toth has the ability to pay the fines and fees.
We acknowledge the record in this case contains no information about Toth's financial information or employment history. We also acknowledge the trial court did not impose attorney's fees because it determined that Toth did not have the ability to pay. However, Toth was sentenced to a term of four years in prison, with no presentence custody credit, to run concurrent with the prison commitment he was serving for murder. "Wages in California prisons currently range from $12 to $56 a month." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones).) Since the challenged fines and fees total $370, Toth will have sufficient time to earn this amount while incarcerated even if we assume he will earn only the minimum prison wage.
As a result, we find any error in determining Toth's ability to pay the challenged assessments would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; Jones, supra, 36 Cal.App.5th at p. 1035 [Dueñas error harmless beyond a reasonable doubt when defendant was sentenced to six years in prison and ordered to pay $370 in fines and fees]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [Dueñas error harmless beyond a reasonable doubt when defendant was sentenced to eight years in prison and ordered to pay $370 in fines and fees]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's prison wages].)
Because we find Toth has the ability to pay the challenged fines and fees, we also decline to reach the Attorney General's assertions related to the constitutional issues raised in the Dueñas opinion, and the Attorney General's Eighth Amendment arguments. --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.