Opinion
H045237
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH MICHAEL AGUERO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1477913)
Defendant Kenneth Michael Aguero was convicted by jury of forcibly resisting an executive officer after he locked himself in a hotel room and resisted multiple peace officers who kicked open the door and subdued him. He argues on appeal that the trial court erred by refusing to hold a second Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); not instructing the jury sua sponte regarding simple assault or battery as lesser included offenses; and imposing certain fines and fees without determining his ability to pay (citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)). He also argues his trial counsel provided ineffective assistance by not objecting to the admission of evidence about defendant's methamphetamine intoxication at the time of the incident. Finding no prejudicial error, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
The operative information charged defendant with one count of forcibly resisting an executive officer. (Pen. Code, § 69; unspecified references are to this code.) The information alleged defendant had one prior strike conviction (§ 667, subds. (b)-(i)) and had served one prior prison term (§ 667.5, subd. (b)).
A. PROSECUTION CASE
A security guard for a hotel in San Jose testified that he responded to a complaint from housekeepers one afternoon about a hotel guest exposing himself to other people on the hotel's third floor. The security guard looked into the gym (also located on the third floor) and saw defendant standing naked. When defendant saw the security guard, he ran back to his room across the hall from the gym. The security guard knocked on defendant's hotel room door and informed him he would have to leave because the hotel did not allow nudity. Defendant responded, "Fuck you. Call the cops."
Hotel staff called 911, and several San Jose Police Department officers responded. They repeatedly knocked and announced themselves as peace officers. Defendant verbally refused to leave at least once. The officers obtained a master key from hotel staff. They opened the door slightly, but could not enter because the interior safety latch was locked in place. Defendant slammed the door shut with his body weight. The officers spent 20 to 30 minutes attempting to convince defendant to leave before deciding to break down the door.
One officer, who held a blackbelt in Brazilian jiu-jitsu, was chosen to kick the door open. The officer testified that once the door was open, he saw defendant standing naked. Defendant appeared sweaty and angry, and was holding his fists up near his chest. The officer estimated that defendant weighed well over 300 pounds. The officer wrapped his arms around defendant, and defendant dragged him a few feet before the two men fell into the area between the room's two beds. Defendant was very strong, and actively resisted the officer's attempts to handcuff him. The officer focused on defendant's left arm while another officer focused on defendant's right arm and another on defendant's legs. The officers were eventually able to handcuff defendant, and had to continue to physically restrain him until he calmed down. The time span between breaking the door open and successfully handcuffing defendant was somewhere between 30 seconds and five minutes, according to estimates from two of the officers. Defendant's left humerus was broken in the scuffle, and one officer broke a finger.
B. DEFENSE CASE
Defendant testified on his own behalf. He had checked into the hotel with a cash deposit early one morning and slept for much of the day. He denied that he had been in the gym naked, or that he had ever come to the door naked. He stated that the front desk kept calling his room and demanding additional payment. He testified that he heard someone knocking on his hotel room door and called out that he was getting dressed. Before he could open the door, it was kicked open. He dropped to the ground and was hit by officers.
Defendant admitted he had been convicted of three prior felonies, including assault with a deadly weapon and felony hit and run. He denied being under the influence of methamphetamine the night of the hotel incident, and also denied ever having used methamphetamine. The prosecutor was allowed to impeach defendant with evidence of prior convictions related to methamphetamine use, and with medical records showing that defendant tested positive for methamphetamine the night of the hotel incident. (We will discuss the methamphetamine evidence in greater detail in Part II.B.)
C. VERDICT AND SENTENCING
The jury found defendant guilty of the charged count, and the trial court found true the special allegations. The trial court sentenced defendant to four years in prison, consisting of the middle term of two years for the charged count (§ 69), doubled for the prior strike conviction (§ 667, subds. (b)-(i)). The trial court struck the prior prison term enhancement, and deemed defendant's sentence served based on his presentence custody credits. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)(1)) and imposed but suspended a $300 parole revocation fine (§ 1202.45); imposed a $40 court operations assessment (§ 1465.8); and imposed a $30 court facilities funding assessment (Gov. Code, § 70373).
II. DISCUSSION
A. RENEWED MARSDEN MOTION
Defendant argues the trial court erred by refusing to conduct a Marsden hearing after he requested one. As respondent correctly points out, the request was actually for a renewed Marsden motion, as the trial court had already conducted one Marsden hearing and denied defendant's first motion. Defendant failed to include this relevant information in his opening brief.
1. The Marsden Requests
Just before the prosecution called its first witness, defense counsel informed the court that defendant wanted a Marsden hearing. The court cleared the courtroom and invited defendant to explain why he wanted to discharge his attorney. Defendant stated there had been "several different statements made [by defense counsel] in the opening statements I felt was very unfair," including that he was nude in the hotel. The court characterized the issue as a disagreement about trial tactics between defendant and his attorney. Defendant then stated: "No. Also, I was told I can't even testify. And if I do, she's going to say to the Court I'm incompetent and that I can't use the witnesses that I actually choose. I feel, you know, I fel[t] might help my case out. I'm very limited in not being able to make my own decision, and she's basically misrepresenting my case." The trial court denied the motion, reasoning that the issue was "a difference of opinion as to the trial tactics," which was not a proper reason to replace defense counsel.
Outside the presence of the jury after the prosecution rested, defendant asked to address the court again. The trial court asked him: "Are you sure you want a hearing to discharge your counsel?" Defendant responded: "No. I can only speak with the Court. I'm requesting -- I need some type of adequate, I need adequate counsel provided me to allow me to compel a witness and provide a witness to defend myself. It's my Sixth Amendment right." The court sought clarification: "Do you want to fire [defense counsel] and get a different counsel? Is that what you're asking?" Defendant responded: "I'm asking the Court if I could compel a witness to testify. I am not able to through counsel." The court explained to defendant that compelling a witness to testify is "not a Marsden motion" because it "goes to trial tactics." Defendant then stated "I'd like to file a Marsden motion," to which the court responded: "You already did, and I denied it. If that's the basis for your motion, that's, again, a trial tactic as to whether or not your attorney subpoenas a particular witness." The trial court ended the discussion with the following: "The issue as to whether or not you subpoena a witness is something you need to talk with your attorney about. It has nothing to do with a Marsden motion, and it's not a motion you make to the Court. Okay? My understanding is [the requested witness has] already been subpoenaed, but the issue as to whether he's called as a witness is between you and your attorney. You can't speak."
2. The Trial Court did Not Err in Denying the Renewed Motion
A "trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel." (People v. Lucky (1988) 45 Cal.3d 259, 281 (Lucky).) But the "mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing." (Ibid.) And "a defendant is not entitled to keep repeating and renewing complaints that the court has already heard." (People v. Vera (2004) 122 Cal.App.4th 970, 980.) We review a trial court's decision on a Marsden motion for abuse of discretion. (Id. at p. 979.)
Defendant's argument that the trial court erred by not conducting a second Marsden hearing overlooks the Marsden hearing held earlier in the trial about the same complaint. At that first hearing, defendant complained that defense counsel was not allowing him to "use the witnesses that I actually choose." The trial court did not abuse its discretion in denying that first motion because a difference of opinion as to trial tactics is not a basis for removing trial counsel. (Lucky, supra, 45 Cal.3d at p. 281.) Defendant's renewed request for a Marsden hearing was based on his desire to "compel a witness to testify," the same grounds as the first motion. The trial court was under no duty to hold a new hearing to allow defendant to repeat the same complaint. Defendant argues in his reply brief that the trial court "was not able to properly determine that [defendant's] dispute with his attorney was a matter of trial tactics because it did not allow [defendant] to explain the nature of the dispute." But that argument is contradicted by the record, as defendant did describe to the trial court that the disagreement stemmed from his desire to compel a witness to testify. The trial court did not abuse its discretion in denying defendant's request for a second Marsden hearing.
B. ASSISTANCE OF COUNSEL REGARDING METHAMPHETAMINE EVIDENCE
Defendant contends he was prejudiced by the jury hearing evidence about his methamphetamine use (both at the time of the charged incident and in the form of prior convictions). He frames the issue as encompassing three problems: prosecutorial misconduct (based on the prosecutor's failure to comply with the court's exclusion of all evidence related to methamphetamine use); a violation of his federal constitutional due process right to a fair trial (based on the trial court's reversal of an earlier order without notice to defendant); and ineffective assistance by his trial counsel for failing to object to the methamphetamine evidence.
1. Background
The prosecution moved in limine to admit evidence that defendant had methamphetamine in his system at the time of the charged incident. The trial court denied the motion, finding that defendant's methamphetamine use was "not relevant to any issue in the case" because section 69 is a general intent crime. The court indicated it would "exclude evidence of [defendant's] methamphetamine use." Consistent with that decision, the court granted the prosecution's motion to exclude evidence of voluntary intoxication.
The parties revisited the issue during trial outside the presence of the jury. Defense counsel wanted to question the arresting officers about defendant's demeanor at the time of his arrest as relevant to defendant's own "use of force and how the officers responded to him." Counsel clarified what she meant by demeanor: "Confus[ed], nervous, disoriented, appeared unaware of his surroundings." The court responded that allowing defense counsel to question the officers about those aspects of defendant's behavior would open the door to the prosecution to ask the officers about "the drug stuff." Defense counsel withdrew her request to question the officers about defendant's demeanor so as to maintain the court's earlier exclusion of evidence related to methamphetamine.
Notwithstanding the exclusion, the following exchange occurred during the prosecutor's cross-examination of defendant. "Mr. Aguero, isn't it true that you were under the influence of methamphetamine that day? [¶] A. No, I wasn't. [¶] Q. So you deny that the blood test, or the urine test came back positive from the hospital for methamphetamine.? [¶] [Defense counsel]: Objection, foundation. [¶] The Court: Sustained. [¶] [Prosecutor]: Q. You're indicating that you are denying that you at no point, on or around March 1st, you had methamphetamine in your system. [¶] A. That's correct. [¶] Q. Are you denying that you ever did methamphetamine? [¶] A. I never did methamphetamine or PCP." The prosecutor then asked the court for a sidebar to seek "clarification of the Court's ruling" which the trial court refused, telling the prosecutor simply "[y]ou are permitted to impeach." The prosecutor then impeached defendant with evidence of two prior convictions for being under the influence of methamphetamine. Defendant denied having suffered one of those convictions, and the trial court later took judicial notice of them. Other than asserting a foundational objection to the chemical test results, defense counsel did not object to the prosecutor questioning defendant about methamphetamine use.
2. There was No Prejudicially Deficient Performance
As defense counsel did not object to the prosecutor's line of questioning and also did not ask for clarification of the trial court's earlier evidentiary ruling, defendant's prosecutorial misconduct and due process challenges are forfeited. We therefore confine our analysis to his ineffective assistance of counsel argument. To establish ineffectiveness of trial counsel in violation of the right to counsel under the Sixth Amendment to the United States Constitution, a defendant must show both deficiency in counsel's performance and prejudice from the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) Deficient performance is rarely shown if there was a tactical reason for trial counsel's conduct. (See People v. Cruz (1980) 26 Cal.3d 233, 255-256 ["except in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics"]; People v. Bolin (1998) 18 Cal.4th 297, 317 [affirming conviction when alleged failure to object "may well have been 'an informed tactical choice within the range of reasonable competence' "].) To prove prejudice, a defendant must affirmatively show a reasonable probability that, but for trial counsel's errors, the result would have been different. (Ledesma, at pp. 217-218.)
Trial counsel here had a tactical reason not to object: once it was admitted, counsel relied on the evidence suggesting possible methamphetamine intoxication to attempt to negate the knowledge element of the charged offense. Defense counsel argued in closing that the absence of evidence that defendant "made any logical sense at the point where his arm was being broken [provides] more than enough reasonable doubt that [defendant] had any knowledge that what the officers were doing was in the lawful performance of their duties." Defendant has also not shown prejudice. The case against him was strong. Defendant was given a number of opportunities to leave the hotel without incident before the police were called, and he refused to do so. Once officers arrived, they announced themselves as peace officers and gave defendant additional opportunities to leave peaceably. He continued to refuse. Defendant slammed the door when the officers used a master key to gain entry, requiring an officer to kick the door open. Even after the officers were inside his hotel room, defendant did not cooperate. It took several officers struggling with defendant to handcuff him and keep him subdued until he calmed down. Given the tactical reason for defense counsel's silence and the strong evidence supporting the conviction, defendant has not shown a reasonable probability of a more favorable result had the jury not heard evidence about his methamphetamine use.
A violation of section 69 requires the prosecution to prove defendant "knowingly resist[ed], by the use of force or violence, the [executive] officer, in the performance of his or her duty." (§ 69, subd. (a).)
C. ASSAULT AND BATTERY AS LESSER INCLUDED OFFENSES
Defendant argues the trial court erred by not instructing the jury sua sponte about simple assault or simple battery as lesser included offenses of forcibly resisting an executive officer. " ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) A jury may convict a defendant of "any offense, the commission of which is necessarily included in that with which he is charged." (§ 1159.) Trial courts have a sua sponte duty to " 'instruct a criminal jury on any lesser offense "necessarily included" in the charged offense, if there is substantial evidence that only the lesser crime was committed.' " (People v. Smith (2013) 57 Cal.4th 232, 239.) " '[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (Id. at p. 240.) We review the instructional issue de novo. (People v. Ortega (2015) 240 Cal.App.4th 956, 965.)
We begin by determining whether simple assault (§ 240) and simple battery (§ 242) are lesser offenses that are necessarily included in forcibly resisting an executive officer (§ 69). As even authority relied on by defendant makes clear, "section 240 is not a lesser included offense of section 69 under the statutory elements test." (People v. Brown (2016) 245 Cal.App.4th 140, 152 (Brown).) But because the charging document here alleged defendant violated section 69 not only by attempting to prevent an executive officer from performing his duties but also by knowingly resisting officers by force and violence, simple assault and simple battery may both be necessarily included offenses if ultimately supported by the evidence at trial. Defendant's appellate argument can be distilled as follows: because defendant testified that he merely tried to protect himself in response to excessive force by the peace officers, the jury should have been instructed on simple assault and simple battery.
A defendant cannot be convicted of violating section 69 if an officer initiates an arrest with the use of excessive force. (See Brown, supra, 245 Cal.App.4th 153-154.) But a defendant may be convicted of a completed section 69 offense if any excessive force occurs only after the defendant has already committed all the elements of forcibly resisting an executive officer. (See People v. Williams (2018) 26 Cal.App.5th 71, 73 ["[I]f a defendant delays, obstructs, or resists an officer who is engaged in the lawful performance of his or her duties, the defendant may be convicted of violating section 148[, subdivision] (a)(1) even if the officer uses excessive force subsequent to the completed violation."].) Here, multiple witnesses testified that defendant forcibly slammed the door when the officers attempted to open it using a master key. Defendant did not directly contradict that account, nor did he provide any plausible reason that the door would slam closed on its own. The evidence thus supported a finding that defendant had applied sufficient force to be convicted of the charged offense before the officers entered his room. Conversely, substantial evidence did not suggest that only simple assault or simple battery was committed over the course of the encounter.
The chronology distinguishes this case from Brown, supra, 245 Cal.App.4th 140, on which defendant relies. Brown was a 67-year-old man who weighed 140 pounds. Two officers who were "decades younger" and in "excellent physical condition" were on patrol near dusk when one noticed Brown riding his bicycle on a sidewalk without a light. (Id. at p. 146.) The officer yelled at Brown to stop, and Brown fled. The officers left their patrol cars and chased Brown on foot into a parking lot. There was a dispute at trial as to what happened when the officers caught up with Brown. The officers testified that Brown refused repeated orders to stop and aggressively flipped around while swinging his hands upon being tackled by an officer. The officers testified they struck Brown in the torso and head to prevent him from resisting further. Brown testified that the officers tackled him without any warning and that he did not resist the officers. (Id. at pp. 146-147.) On appeal from a conviction for forcibly resisting an executive officer, Brown argued that the trial court should have instructed the jury on the lesser included offense of simple assault based on the evidence adduced at trial. (Id. at p. 150.) The appellate court agreed, finding the jury could have concluded that any improper or excessive force by Brown was in response to excessive force by the officers and therefore supported only a simple assault conviction. (Id. at p. 154.) Unlike in Brown, the jury here heard uncontradicted substantial evidence that defendant had already satisfied all elements of section 69 by slamming the door before an executive officer exerted any force against him.
Brown is also factually distinguishable because the substantial size differential between the officers and Brown made their use of force more suspect, whereas here defendant was roughly the same age as the arresting officers and weighed over 300 pounds. We find no error in the trial court not instructing the jury about simple assault and simple battery as lesser included offenses.
D. DUE PROCESS ISSUES RELATING TO FINES AND FEES
Based on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues his federal constitutional right to due process was violated when fines and fees were imposed without determining that he would be able to pay them. Respondent argues that defendant forfeited the challenge by failing to object. On the merits, respondent argues there was no due process violation as to the restitution fine, but appears to concede that the court operations assessment (§ 1465.8) and court facilities assessment (Gov. Code, § 70373) should have been preceded by an ability to pay hearing. We find no forfeiture because the court imposed the minimum restitution fine and Dueñas was decided in 2019, well after defendant was sentenced.
Respondent also advances an argument related to the Eighth Amendment's excessive fines clause. We decline to review the fines under the Eighth Amendment theory because it was not raised by defendant in his opening brief and only cursorily discussed in his reply. We therefore analyze the fines and fees issue based on the due process argument defendant briefed.
As summarized by another opinion, Dueñas held that " 'due process of law requires [a] trial court to ... ascertain a defendant's present ability to pay before it imposes' (1) 'court facilities and court operations assessments' [citations], or (2) a restitution fine." (See People v. Hicks (2019) 40 Cal.App.5th 320, 325, review granted November 26, 2019, S258946 (Hicks).) But a growing number of appellate authorities have concluded that Dueñas was wrongly decided. As a two-justice decision from another panel of this court recently noted, Dueñas's conclusion that due process compels an ability to pay determination in every case "is not supported by the authorities it cited and is inconsistent with due process jurisprudence." (People v. Adams (2020) 44 Cal.App.5th 828, 832; accord People v. Petri (2020) 45 Cal.App.5th 82; Hicks, supra, 40 Cal.App.5th at p. 329, rev. granted; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060; People v. Allen (2019) 41 Cal.App.5th 312, 326-328.) We are persuaded by those authorities that Dueñas was wrongly decided, and we reject the respondent's concession as to the court operations and facilities assessments. (People v. Kim (2011) 193 Cal.App.4th 836, 847 [courts need not accept a party's concession].) As defendant's appellate argument is based entirely on Dueñas and opinions adopting its reasoning, we conclude defendant has not demonstrated error in the trial court's imposition of fines and fees.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
I CONCUR:
/s/_________
Elia, J.
PREMO, Acting P.J., Concurring and Dissenting.
I concur with my colleagues' resolution of Aguero's claims with the exception of their rejection of People v. Dueñas (2019) 30 Cal.App.5th 1157. I respectfully dissent from their conclusion that Dueñas was wrongly decided. Accordingly, I would remand the matter to the trial court for the limited purpose of holding a hearing on Aguero's ability to pay (People v. Santos (2019) 38 Cal.App.5th 923, 933-934).
/s/_________
Premo, Acting P.J.