Opinion
G056742
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS VEJARANO, Defendant and Appellant.
Eric E. Reynolds, 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, Senior Assistant Attorney General, Michael Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF0781) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Eric E. Reynolds, 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, Senior Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Jesus Vejarano appeals from a judgment after a jury convicted him of using a false compartment to transport a controlled substance and two counts of possession of controlled substances. Vejarano argues insufficient evidence supports his conviction for using a false compartment and the matter must be remanded to determine whether he has the ability to pay the fees and fines. Neither contention has merit, and we affirm the judgment.
FACTS
Officers Gil Hernandez and Roland Andrade were outside of a building in Irvine where they believed a kidnapping was in progress. When a Lincoln Navigator (SUV) left the location, the officers conducted a vehicle stop of the SUV to investigate whether it was involved in the kidnapping. Vejarano was the driver of the SUV. Andrade searched the vehicle for evidence of the kidnapping. During the course of the search, in a void space underneath the center console, Andrade found two baggies containing methamphetamine and one baggie containing heroin.
When Andrade first opened the center console, he observed a "construction-type screw" that appeared to be holding a portion of the center console in place. Based on his training and experience relating to the investigation of cases involving hidden compartments, Andrade recognized the screw as being out of the ordinary for a vehicle. The screw in the bottom of the console looked like a dry wall screw that was not part of the original automotive production. The center console was loose and next to the construction-type screw was a screwdriver. Andrade used the screwdriver to remove the screw and the console came apart revealing the baggies. Andrade believed the center console was very loose and concluded it had been manipulated from its original state. The baggies were under the console in a void that Andrade accessed by unscrewing the screw and removing the top portions of the center console.
An information charged Vejarano with the following: transportation for sale of heroin (Health & Saf. Code, § 11352, subd. (a), all further statutory references are to the Health and Safety Code, unless otherwise indicated) (count 1); transportation for sale of methamphetamine (§ 11379, subd. (a)) (count 2); possession for sale of heroin (§ 11351) (count 3); possession for sale of methamphetamine (§ 11378) (count 4); using a false compartment for the purpose of transporting a controlled substance (§ 11366.8, subd. (a)) (count 5); and constructing a false compartment to store, conceal, and transport a controlled substance (§ 11366.8, subd. (b)) (count 6). The information alleged Vejarano suffered two or more serious and violent felony convictions (Pen. Code, §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and one prior prison term (Pen. Code, § 667.5, subd. (b)).
At trial, photographic exhibits of the center console were admitted into evidence. Andrade testified concerning his training and experience recognizing after-market vehicle alterations and how the center console was modified from its original factory design.
During deliberations, the jury asked the trial court to clarify the definition of "'altering'" and "'attaching.'" The court told the jury to use their common meanings. The jury also asked whether "the construction screw [was] considered an 'alteration?'" The court answered, "That is up to you to decide."
A jury acquitted Vejarano of counts 1 and 2. The jury also acquitted him of counts 3 and 4, but convicted him of the lesser included offenses of simple possession of heroin and methamphetamine. The jury convicted him of count 5, and deadlocked on count 6 (the court declared a mistrial on count 6 and dismissed it). At a bench trial, the trial court found true the prior conviction allegations. The court sentenced Vejarano to four years in prison on count 5 and ordered him to pay a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court security assessment fee (Pen. Code, § 1465.8), and a $30 court facilities assessment fee (Gov. Code, § 70373). In imposing the latter two fees, $70, the court ordered those fees "for each count convicted." The court concluded he did not have the ability to pay the costs of the probation report. The court imposed concurrent sentences on counts 3 and 4.
DISCUSSION
I. Sufficiency of the Evidence
Vejarano relies on People v. Arias (2008) 45 Cal.4th 169 (Arias), to argue there was no evidence supporting his conviction for count 5 because there was insufficient evidence of a false compartment. We disagree.
Vejarano does not dispute the trial court properly instructed the jury with CALCRIM No. 2441. The instruction was correct.
"'"'"[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'"' [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] 'We presume "'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citation.]' [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
Section 11366.8, subdivision (a), prohibits "possess[ion], use[], or control[] [of] a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment . . . ." In relevant part, the statute defines a "'false compartment'" as "any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: [¶] . . . [¶] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle." (§ 11366.8, subd. (d).)
In Arias, our Supreme Court interpreted section 11366.8 "to exclude from its definition of 'false compartment' a vehicle's original factory equipment that [had] not been modified, altered, or changed in any way" and concluded the trial court erred in instructing the jury. (Arias, supra, 45 Cal.4th at pp. 173-174.) In that case, the officer who conducted the vehicle search pulled off the "loose' dashboard panel located 'just above [a seated driver's] left knee' and removed the plastic, which contained three baggies containing a white substance." The officer described the space as being under the steering column and behind the dashboard. He testified it did not appear to be a storage area. Access to the area was accomplished by clipping the dashboard panel covering the void in and out. The officer opined the apparent purpose of the panel was to allow access to the wiring for people working on the car. (Id. at p. 174.) However, the "prosecutor never asked the officer whether he tried to determine whether this space, or any other part of the Lexus, was standard in that model or whether it had been modified, altered, or changed in any way in order to prevent the discovery of controlled substances." (Id. at p. 183.) The Arias court held a "'false compartment'" must be "something more than the existing compartments or original factory equipment in a vehicle." (Id. at p. 181.) In other words, false compartments cannot be "factory-created compartments or original factory equipment." (Id. at p. 182.)
Here, sufficient evidence supported the conclusion there was an aftermarket modification of, or alteration to, the original factory equipment of the SUV. Based on his training and experience identifying altered vehicles, Andrade described the screw he found in the SUV as a dry wall screw that was not part of the original factory design. He also found a screwdriver adjacent to the screw. Relying on how loose the compartment was and how easily it fell apart when he inserted the adjacent screwdriver, Andrade concluded the compartment had been manipulated from its original state. Photographs of the center console were shown to the jurors and Andrade explained the alteration. Based on this evidence, the jury could reasonably conclude Vejarano used a false compartment to store controlled substances.
Vejarano relies on the jury's questions regarding the definition of "alteration" and whether the construction screw was an alteration, and the fact the jury deadlocked on count 6 to claim insufficient evidence supported count 5. Not so. Vejarano does not dispute the trial court's responses to the jury's questions were correct. The court's responses were correct, and the jury's verdict reflects it applied alteration's common definition to conclude the dry wall screw was an alteration. Count 5, section 11366.8, subdivision (a), makes it a crime to use a false compartment. Count 6, section 11366.8, subdivision (b), makes it a crime to "design[], construct[], build[], alter[], or fabricate[] a false compartment." The jury's verdicts were not inconsistent—it was not unreasonable for one or more jurors to conclude Vejarano used a false compartment without concluding he constructed it.
Reviewing the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the jury's finding Vejarano used a false compartment that was created by modifying, altering, or changing the original factory equipment of the SUV. Thus, sufficient evidence supported Vejarano's conviction for count 5. II. People v. Dueñas
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Vejarano argues the trial court violated his due process rights by imposing fees and fines without conducting an ability to pay hearing and the matter must be remanded for the court to conduct such a hearing. We disagree.
Vejarano references the Eighth Amendment and cites to Timbs v. Indiana (2019) ___ U.S. ___, 139 S.Ct. 682, for the rule the prohibition on excessive fines is incorporated to the states by the Fourteenth Amendment's due process clause. However, he does not argue the fees and fines were excessive. Thus, we need not address that claim.
In Duenas, supra, 30 Cal.App.5th at pages, 1160-1161, defendant was a married mother of two who suffered from cerebral palsy and was unemployed, homeless, and living on public assistance. As a juvenile, she suffered three juvenile citations and because she could not pay the $1,088 in fines, her driver's license was suspended. (Id. at p. 1161.) She subsequently suffered three misdemeanor convictions for driving on a suspended license, and another conviction, and because she could not afford to pay those fines, she served jail time, but she remained liable for court fees and attorney fees. (Ibid.) After she suffered a fourth conviction for driving on a suspended license and could not obtain a driver's license by the time of the sentencing hearing, the trial court suspended the sentence and placed her on three years of probation on the condition she serve 30 days in jail and pay $300, plus a penalty and assessment, or that she serve an additional nine days in jail. (Id. at p. 1162.) Defendant's counsel indicted she did not have the ability to pay, and the court ordered her to serve the additional nine days. The court also imposed a $30 court facilities assessment fee (Govt. Code, § 70373), a $40 court operations assessment fee (Pen. Code, § 1465.8), and a $150 restitution fine (Pen. Code, § 1202.4). (Dueñas, supra, 30 Cal.App.5th at p. 1162.) Defendant requested an ability to pay hearing for the prior court and attorney fees. (Ibid.) At the ability to pay hearing, the court concluded she lacked the ability to pay the attorney fees and waived them. (Id. at p. 1163.) However, the court stated the $30 court facilities assessment fee (Govt. Code, § 70373), and $40 court operations assessment fee (Pen. Code, § 1465.8) were both mandatory regardless of her ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) In doing so, the court rejected her claim due process and equal protection required the court to consider her ability to pay. (Ibid.) As to the $150 restitution fine (Pen. Code, § 1202.4), the court concluded she had not shown the "compelling and extraordinary reasons" required by statute to justify waiving the fine. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
The Duenas court reversed, holding due process prohibits a trial court from imposing a court facilities assessment fee (Govt. Code, § 70373), and court operations assessment fee (Pen. Code, § 1465.8), and requires the trial court to stay execution of any restitution fines (Pen. Code, § 1202.4), until the trial court ascertains the defendant's ability to pay those assessment fees and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Duenas court noted the state may not deny access to the courts or inflict punishment on criminal defendants based solely on their poverty. (Id. at pp. 1165-1166.) As to the assessment fees, court funding mechanisms, the court explained imposing them without an ability to pay determination was additional punishment and fundamentally unfair because they could lead to "cascading" and "potentially devastating consequences," including impeding reentry and rehabilitation, limiting employment opportunities, damaging credit, and interfering with other financial commitments. (Id. at pp. 1163, 1168 & fn. 4 [court based decision on due process but noted convergence of due process and equal protection principles].) With respect to the restitution fine, which was additional punishment, the court reasoned that by prohibiting the consideration of a defendant's ability to pay the minimum fine, "the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.) The court opined imposing a restitution fine without an ability to pay determination on a probationer was fundamentally unfair because an unsatisfied restitution obligation necessarily deprives the indigent defendant of the opportunity to obtain mandatory expungement of the conviction as a matter of right whereas a wealthy defendant earns that right. (Id. at pp. 1171-1172 & fn. 8 [court based decision on due process but noted due process sufficiently similar to federal and California ban on excessive fines].) A. Forfeiture
The Attorney General argues Vejarano forfeited review of this claim because he did not raise the issue in the trial court. We disagree.
The Courts of Appeal are divided on the issue of forfeiture in these circumstances. (Compare People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson) [no forfeiture] and People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) [same], with People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [forfeiture] and People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [same].)
In Castellano, supra, 33 Cal.App.5th at page 489, the court held defendant did not forfeit appellate review of his ability to pay claim, even though he did not object at the sentencing hearing. The court reasoned Dueñas had not yet been decided, "no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay," and Dueñas was based on "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial." (Castellano, supra, 33 Cal.App.5th at p. 489.) In addition, the relevant statutory authority did not allow the sentencing court to consider a defendant's ability to pay since it imposed the minimum restitution fine. (Ibid.)
In Frandsen, supra, 33 Cal.App.5th at pages 1154-1155, the court held defendant forfeited his appellate arguments based on Dueñas about his ability to pay the fines and fees because he failed to object at the sentencing hearing to the restitution fine that was imposed above the statutory minimum, he was raising a question of fact and not of law, and there was nothing in the record to indicate he would have been foreclosed from making the same objections as the defendant in Dueñas. (Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.) The court also "fundamentally" disagreed with Castellano on the assertion Dueñas was "'a dramatic and unforeseen change in the law,'" since the defendant in Dueñas "foresaw it" by raising the ability to pay issue based on existing cases. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) "Dueñas applied law that was old, not new." (Id. at p. 1155.)
We agree with the Castellano court's reasoning and conclude Vejarano did not forfeit his right to challenge the fees and fine. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237-238.) In determining whether the objection would have been futile, "we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial.'" (People v. Black (2007) 41 Cal.4th 799, 811.)
At the time of Vejarano's trial, no California case authority supported the proposition due process principles required a trial court to conduct an ability to pay hearing for a court facilities assessment fee (Govt. Code, § 70373), court operations assessment fee (Pen. Code, § 1465.8), or minimum restitution fine (Pen. Code, § 1202.4). Vejarano may raise this issue for the first time on appeal because an objection prior to Dueñas "'would have been futile or wholly unsupported by substantive law then in existence.'" (People v. Brooks (2017) 3 Cal.5th 1, 92.) B. Analysis
We find it unnecessary to weigh in on whether Dueñas was correctly decided because any error was harmless beyond a reasonable doubt. (Johnson, supra, 35 Cal.App.5th at pp. 139-140, citing Chapman v. California (1967) 386 U.S. 18, 24.)
"'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
We can infer Vejarano has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages. (People v. Douglas (1995) 39 Cal.App.4th 1395, 1397 (Douglas).) "Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. [Citations.] The state may garnish between 20 and 50 percent of those wages to pay the [Penal Code] section 1202.4, subdivision (b), restitution fine. [Citations.]" (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.)
Although no hearing was held or requested, the record suggests Vejarano had an ability to pay the $510 in fees and fines. There is no indicia of indigency in the record. The fact Vejarano was represented in the trial court and on appeal by appointed counsel does not necessarily demonstrate an inability to pay the fines and fees. "[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine" or other fees imposed by the trial court. (Douglas, supra, 39 Cal.App.4th at p. 1397.) The fact the trial court opined Vejarano did not have the ability to pay the costs of his probation report is not dispositive when a court can consider future wages.
We note both Vejarano and the Attorney General state the fees and fine in question total $370. But the trial court imposed the $70 fee, i.e., a $40 court security fee and a $30 court facilities fee, for each conviction. The jury convicted Vejarano of three crimes, and thus those fees total $210. The court also imposed a $300 restitution fine. His fees and fine total $510.
Nor is there any indication Vejarano, a 28-year-old felon sentenced to prison for four years, is in danger of becoming indigent while imprisoned such that he lacks the future ability to pay his fees and fines. As evidenced by his probation report, prior to 2015 he had been employed for several years, but reported he quit his job due to drug usage. He was employed at the time of his arrest, but he lost that job as a result of his custody status. He stated his plans for the future included obtaining a general education development certificate and "obtain a good job." He had worked as a janitor, glass cutter, and warehouse worker. He also stated he wanted to help his parents because one of them is ill and unable to work.
Although he reported minor health problems, he described his health as fair and indicated one of his hobbies was handball. In a letter to the court, Vejarano's cousin stated Vejarano loved playing basketball with his friends. And about two months after the offense here, Vejarano was riding a bicycle and when an officer told him stop, Vejarano continued riding. These facts demonstrate Vejarano has a desire to and is physically capable of working and earning money in custody and will be able to pay a $40 court security fee, a $30 court facilities fee, and a $300 restitution fine from his future prison wages. To the extent debt remains following his release, it is not reasonable to conclude he would be unable to pay that balance. Thus, Vejarano will not be without the ability to pay fees and a fine while imprisoned.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.