Opinion
F085942
06-11-2024
THE PEOPLE, Plaintiff and Respondent, v. MARIO ALEJANDRO ARCIGA, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F10904281. Gregory T. Fain, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, Acting P. J.
A jury found appellant and defendant Mario Alejandro Arciga (defendant) guilty of forcible rape, kidnapping to commit rape, attempted lewd act on a child, and attempted kidnapping to commit a lewd act upon a child under 14 years of age. The court sentenced defendant to an aggregate term of seven years plus 25 years to life. The court found defendant unable to pay various court fees and assessments but imposed the maximum $10,000 restitution fine under Penal Code section 1202.4, subdivision (b) and a victim restitution fine under section 1202.4, subdivision (f). Defendant argues on appeal that (1) substantial evidence did not support the "One Strike" law, kidnapping-to-commit-rape allegation (§ 667.61, subds. (a), (d)(2)), and (2) the case should be remanded for sentencing to conduct a further ability-to-pay hearing to reconsider the imposition of the restitution and victim restitution fines. We affirm.
All further undesignated statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL BACKGROUND
On January 5, 2012, the Fresno County District Attorney filed an amended information charging defendant with crimes relating to two victims: (1) as to Maria F., forcible rape (§ 261, subd. (a)(2); count 1) and kidnapping to commit rape (§ 209, subd. (b)(1); count 2) and (2) as to C.M., attempted lewd act on a child (§§ 664, 288, subd. (a); count 3) and an attempted kidnapping to commit a lewd act upon a child under 14 years of age. (§§ 664, 209, subd. (b)(1); count 4.)
As to count 1, the amended information alleged that defendant kidnapped Maria F., and that Maria's movement "substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense" such that the One Strike law applied. (§ 667.61, subds. (a), (d)(2).) As to counts 3 and 4, the amended information also alleged that defendant used a firearm or deadly weapon (§ 12022.3, subd. (a)). (§ 1192.7, subd. (c)(23).)
On January 17, 2012, the jury found defendant guilty on all counts and found true all allegations.
After the court imposed judgment, defendant appealed. He claimed, in part, the trial court erroneously denied his motion under Batson v. Kentucky (1986) 476 U.S. 79. We rejected those claims and affirmed the judgment.
People v. Arciga (April 11, 2014, F064382) [nonpub. opn.].
The United States District Court for the Eastern District of California later granted defendant habeas relief on his Batson claim and ordered that defendant either be released from custody or retried. The prosecution retried defendant on the January 5, 2012, amended information, and a new jury found him guilty on all counts and found true all allegations.
The trial court sentenced defendant to 25 years to life on count 1 and a consecutive term of seven years on count 4. The court stayed execution of punishment on counts 2 and 3 and struck the firearm enhancement as to count 4. The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a suspended parole revocation restitution fine (§ 1202.45, subd. (a)), and victim restitution in an amount to be determined (§ 1202.4, subd. (f)).
On March 15, 2023, defendant filed a notice of appeal.
FACTUAL BACKGROUND
August 18, 2020
On August 18, 2020, around noon, Maria F., a 21-year-old female, walked to a bus stop from her apartment complex in Fresno along railroad tracks in an open environment. Maria carried a tote bag and listened to music with wired earphones in her ears. She did not notice anyone at the strawberry stand at the end of the path, but she noticed someone out in the field. She also noticed a truck at the end of the path. Because a strawberry field was at the path's end, and she knew vehicles drove through there often, she was not suspicious. As she walked toward the truck, it began moving toward her, and she moved aside on the truck's driver's side to make room for it to pass. The truck stopped, and a man wearing a ski mask exited the truck. He lunged toward her, struck her left temple with his fist, and she fell to the ground.
While she was on the ground, defendant put his hand over her mouth and placed his mouth on her breast. Maria F. was in shock. She asked defendant what he wanted. He replied that he wanted "sex." Defendant lifted Maria off the ground by her arm and led her into the truck on the driver's side. Though she could not recall if the truck was running, she thought she might have been able to drive away. She sat on the driver's seat with "one leg in and one leg out" of the truck. Defendant then repositioned her onto her back, removed her shorts, and applied his body weight on top of her. Defendant then exposed his genitals and penetrated Maria.
While defendant raped Maria F., she attempted to "humanize [her]self" by asking him to give his name and remove his mask. Defendant told her his name was "Pedro." Maria was scared that she would be killed or taken away. At some point, Maria. freed her hands, and she attempted to remove defendant's mask. He ordered her to stop and may have physically prevented her from doing so. When defendant "finished," he removed himself from Maria, said, "Thanks," and let Maria get out of the truck. Maria's head was bruised and swollen, and her lip was bruised. She fled behind the nearby strawberry stand, where she called the police. During the call, she asked a man who was nearby the stand the address for the stand.
Maria F. tries not to think about the incident, but sometimes the memories intrude.
August 19, 2010
On the morning of August 19, 2010, C.M., a 12-year-old female seventh grade student, while walking to school, noticed defendant move from the driver's seat of a "van" parked at her school's gate and enter the rear of the vehicle without exiting it. As she passed the vehicle, defendant, wearing a ski mask, opened the door and pointed a firearm at her. She clung to the gate. Defendant wanted her to get into the van, but she pleaded with him to "[l]et [her] go to school." He eventually drove off, and C.M. reported the incident to her school security. Though C.M.'s memory appeared uncertain at trial on February 1, 2023, she testified that her memory was clearer at the time of the incident.
City of Fresno Police Officers Maciel and French testified about their interview with C.M. the morning of the incident. When they interviewed C.M., she was at the school counselor's officer visibly shaken and distraught. She reported that defendant approached C.M. in a brown truck, not a van. Wearing a ski mask and holding a "handgun," he opened the truck's door and told her to get in. Though she expressed she wanted to go to school, he stood in front of her and blocked her from going. Defendant ordered her to get in the truck and to lift her shirt. Later, on August 19, 2010, when defendant and his vehicle were apprehended, C.M. identified both the brown truck and defendant's clothing. Officers found a black ski mask and a pellet "handgun" in the vehicle.
DISCUSSION
I. Substantial Evidence Supported Finding the Section 667.61, Subdivision (d)(2) Allegation True
Defendant argues substantial evidence did not support the kidnapping-to-commit allegation in violation of section 667.61, subdivision (d)(2). We disagree.
A. Additional Background
In addition to hearing Maria F.'s testimony described above, the jury viewed photographs of the path Maria took to the bus stop the morning of August 18, 2010. The jury also viewed photographs of the truck's interior.
The court instructed the jury with CALCRIM No. 1203. It listed as an element of a violation of kidnapping for the purpose of rape that the victim "was moved or made to move a distance beyond that merely incidental to the commission of a rape." It further defined "substantial distance" as "more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the rape. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
B. Analysis
The One Strike law provides an alternative sentencing scheme, imposing a 25-year-to-life sentence if, relevant here, a defendant kidnaps the victim to commit rape. (§ 667.61, subds. (a), (c)(1), (d)(2); People v. Lopez (2004) 119 Cal.App.4th 355, 360.) The jury must find that a defendant "kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense .." (§ 667.61, subd. (d)(2).)
Similarly, aggravated kidnapping occurs where a defendant kidnaps the victim to commit, relevant here, rape, and the "movement is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (§ 209, subd. (b)(1).)
Though section 667.61, subdivision (d)(2) kidnapping "is aggravated kidnapping" (People v. Byrd (2011) 194 Cal.App.4th 88, 100), section 667.61, subdivision (d)(2) requires a greater showing of a "substantial[] increase[]" to the victim's risk of harm, versus only a mere "increase" to that risk. (People v. Robertson (2012) 208 Cal.App.4th 965, 982 (Robertson).) Thus, section 667.61, subdivision (d)(2) requires two elements: (1) kidnapping (§ 207, subd. (a)), that is, movement of a substantial distance not merely incidental to the other crime and (2) a substantial increase in the risk of harm to the victim. (People v. Dominguez (2006) 39 Cal.4th 1141, 1153 (Dominguez); People v. Diaz (2000) 78 Cal.App.4th 243, 246.)
These elements' interrelation is "difficult to capture in a simple verbal formulation that would apply to all cases.... [T]he jury must 'consider[] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.' [Citations.] This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim's forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim." (Dominguez, supra, 39 Cal.4th at pp. 1151-1152.)
" 'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict - i.e., 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. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'" (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
Defendant argues that Maria F. moved only a minimal, not a substantial, distance. But measured distance, though a relevant factor, is "one that must be considered in context, including the nature of the crime and its environment. In some cases, a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient." (Dominguez, supra, 39 Cal.4th at p. 1152.) "Where movement changes the victim's environment, it does not have to be great in distance to be substantial." (People v. Shadden (2001) 93 Cal.App.4th 164, 169 [movement of victim from front area of store in public view nine feet into a closed back room sufficient for aggravated kidnapping].)
"For example, moving robbery victims between six and 30 feet within their home or apartment [citations] or 15 feet from the teller area of a bank to its vault [citation] may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter to a small back room for the purpose of raping her [citation] or forcibly moving a robbery victim 40 feet within a parking lot into a car [citation] might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement." (Dominguez, supra, 39 Cal.4th at p. 1152.)
In Robertson, supra, 208 Cal.App.4th at page 978, this court held, where the defendant moved the victim from near an exit door inside the back of a garage used by the defendant as a church, past several rows of pews, and to the front of the garage next to a tub of water where he assaulted her, the movement was more than incidental to the rape and increased the risk of harm to the victim over and above that necessarily present in a rape. The movement's context increased the victim's risk of harm by making her vulnerable to attack given her concealment, reduced her chances to escape, increased the defendant's control over an attempted escape, decreased the likelihood of detection, and afforded defendant a means to drown her if she resisted. (Id. at p. 985.)" 'Where a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape.'" (Id. at p. 984.)
Conversely, in People v. Perkins (2016) 5 Cal.App.5th 454, 460, 470, though a defendant moved a victim from an apartment's only bathroom to an apartment's only bedroom, a distance between 10 and 30 feet, where he sodomized and raped her, and the doors remained open during the attack, the movement was not substantial because it did not increase the victim's risk of harm: no evidence showed a decreased likelihood of detection, an increased danger in the victim's possible escape attempts, or an enhanced ability for defendant to commit additional crimes.
Here, even assuming the distance was short as defendant contends, considering the movement's context, a reasonable juror could have found that the movement met the criteria for section 667.61, subdivision (d)(2) kidnapping. After striking Maria F.'s head hard enough to cause bruising and swelling, defendant began his assault, but did not rape, Maria on the open road. With Maria subdued, nothing prevented defendant from accomplishing the rape in the road. (People v. Salazar (1995) 33 Cal.App.4th 341, 348, fn. 8 ["a rape ... does not necessarily require movement to complete the crime"].) Given defendant did not attempt or accomplish the rape on the open road, the jury could reasonably have inferred that the movement from the road to the vehicle "was neither part of nor necessary to the rape." (Robertson, supra, 208 Cal.App.4th at p. 984.)
Unrealized harm does not obviate the existence of risk. (People v. Rayford (1994) 9 Cal.4th 1, 13-14.) Contrarily, defendant's factual arguments (there was no evidence that help would have come, the vehicle was private, Maria F.'s legs were out of the vehicle entering public view, she attempted to escape, or she suffered any psychological harm outside the rape) ask us to hold unrealized risk as nonrisk, so we reject them. Defendant also asks us to draw inferences contrary to reasonable inferences available to the jury. (People v. Penunuri, supra, 5 Cal.5th at p. 142.) Substantial evidence supported a reasonable inference that the movement was substantial and increased the risk of physical and psychological harm to Maria F. By moving Maria to the enclosed interior of the vehicle, defendant denied her means of escape, affording him further control over Maria to escalate his criminal conduct and commit other crimes, thereby increasing the risk. Because a reasonable juror could have concluded on the evidence that the movement substantially increased Maria's risk of physical and psychological harm, and that the movement was substantial and not merely incidental to the rape, we find sufficient evidence supported the validity of the section 667.61, subdivision (d)(2) kidnapping finding.
II. Substantial Evidence Supported Finding the Section 667.61, Subdivision (d)(2) Allegation True
Defendant requests that we remand this case for the trial court to reconsider the imposition of the maximum $10,000 restitution fine (§ 1202.4, subd. (b)) and the victim restitution fine (id., subd. (f)) given defendant's inability to pay. We conclude remand is inappropriate and affirm the fines.
A. Additional Background
In deciding to stay count 2 and impose the greater punishment for count 1, the court observed the criminal conduct toward Maria F. constituted a "serious danger" to her and that it was "a horrific crime, one of the more horrific ones we see in these courts." "[T]o watch [Maria] shake, to watch her relive the trauma was hard, even for an old judge like me who's heard an awful lot over the years. This was [a] horrific crime." This "crime presents a significant [and] substantial risk to the public. The person who engaged in that type of crime presents a significant [and] substantial risk to the public . . .." The court also determined that defendant's criminal conduct toward C.M. was a "horrifically serious crime."
Defense counsel requested the trial court stay all fines and fees, including the $10,000 restitution fine, upon a finding that defendant was unable to pay. Counsel explained that defendant was unable to pay because he had been in prison for about a decade. Counsel admitted that "he [did] do some work at the prison" but contended his pay was minimal.
The court imposed the restitution fine because it believed that "restitution to the victim is required under the constitution of the State of California." The court struck the remaining fines under section 290.3, as well as the courtroom security fees and costs. The court stated, "I don't find he has the ability to pay the remaining fines" and court assessments. The court ordered defendant to pay a restitution fine of $10,000 under section 1202.4, subdivision (b) and an unspecified restitution fine to the victims under section 1202.4, subdivision (f). The court's minute order explained that it "reserves jurisdiction over the issue of restitution to be paid to victim(s)."
B. Analysis
A court must order a convicted criminal defendant to pay two fines (§ 1202.4, subd. (a)(3)): (1) a restitution fine between $300 and $10,000 if the crime is a felony, unless the court finds compelling and extraordinary circumstances to impose no fine (id., subd. (b)) and (2) restitution to the victim(s) for economic and noneconomic harm. (§ 1202.4, subd. (f).) Defendant challenges the court's imposition of both fines. We find no error.
1. Restitution Fine under Section 1202.4, Subdivision (b)
Defendant argues we must remand for an ability-to-pay hearing under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas) because the trial court failed to properly consider the "central issue" of his inability to pay the "financial obligations imposed upon him at sentencing." We disagree. The ability-to-pay issue was raised and considered by the trial court. Indeed, the trial court struck several fees and costs on the grounds defendant could not pay them.
Defendant argues we should remand the case so he has an opportunity to present evidence or argument as to why such monetary obligations exceed his ability to pay them, whether or not he had prison employment. However, defendant did argue his inability to pay. While he did not present any evidence or request an evidentiary hearing, that is not the fault of the trial court. Insofar as defendant, on appeal, requests a more exhaustive ability-to-pay hearing than what occurred at the sentencing hearing, counsel did not request it below even though Duenas and related cases were already decided, so defendant forfeited this issue on appeal. (People v. Greeley (2021) 70 Cal.App.5th 609, 624; see also People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [defendant responsible "to object to the fine and demonstrate why it should not be imposed"]; cf. People v. Leon (2020) 8 Cal.5th 831, 854 [finding no forfeiture where trial court imposed $10,000 restitution fine without mentioning it at the sentencing hearing, depriving defendant of any opportunity to object].)
Nor would we remand for a more exhaustive ability-to-pay hearing given the trial court already determined defendant unable to pay various fees and assessments. The sentencing hearing afforded defendant the opportunity to present argument and evidence relating to, and to contest, the court's imposition of, fines, fees, and assessments at the sentencing hearing, and he in fact did so. The court accepted defendant's representations that he was unable to pay and earned minimal prison wages. Finding him unable to pay, the court struck the court assessments and fees but imposed the restitution fines for other countervailing reasons. Due process is satisfied so long as the defendant receives a meaningful opportunity to discharge the burden to prove inability to pay. (See Boddie v. Connecticut (1971) 401 U.S. 371, 377-379 [due process only requires that "all individuals" be afforded "a meaningful opportunity to be heard"].) We conclude defendant received due process.
Though defendant raises no ineffective assistance of counsel claim, we may consider it in advance to foreclose it. (People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may consider unraised claims to foreclose ineffective assistance of counsel arguments].) Given defendant received due process, i.e., an opportunity to present evidence of his inability to pay, which he pursued below and on which the court considered him unable to pay, counsel could reasonably conclude a further request for hearing was futile. (People v. Thompson (2010) 49 Cal.4th 79, 122 [futility not a basis for ineffectiveness].) We find no ineffective assistance of counsel.
2. Direct Victim Restitution
Defendant urges us to remand for the trial court to consider his ability to pay in imposing direct victim restitution. (§ 1202.4, subd. (f).) We disagree.
Defendant provides cursory citation to Duenas, supra, 30 Cal.App.5th 1157. But Duenas did not consider direct victim restitution. (Id. at p. 1169.) Nor do any other authorities defendant cites. (People v. Kopp (2019) 38 Cal.App.5th 47, p. 94, fn. 22, review granted Nov. 13, 2019, S257844; People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020, S261952.)
Given the California Constitution mandates direct victim restitution against a defendant for a criminal victim's loss (Cal. Const., art. I, § 28, subd. (b)(13)(B); see § 1202.4, subd. (f) [enacting the constitutional mandate]), we neither find, nor does defendant provide, any cogent argument or citation to authority to support that the court's deferred award of direct victim restitution was unlawful in this case. Defendant's forfeiture is dispositive. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived"].)
Even on the merits, we conclude the court properly imposed direct victim restitution. Given direct victim restitution is meant to compensate the victims for the economic and noneconomic consequences suffered (§ 1202.4, subd. (f)(3)), such compensation is not subject to the defendant's ability to pay (id., subd. (g)), and it is enforced as a civil judgment (id., subd. (a)(1)(3)(B)); defendant would not be criminally penalized for failing to pay it. Thus, he would not be subject to the same cyclical criminalization based on his ability to pay to which the Duenas defendant was subject. We find no error the trial court's imposition of victim restitution.
DISPOSITION
The judgment is affirmed. We direct the trial court to issue an amended the abstract of judgment reflecting, under section 9(b) titled, "Restitution per PC 1202.4(f)," that an amount to be determined is awarded to each victim in this case and appropriately identify each victim. The trial court shall prepare and forward to all appropriate parties a certified copy of an amended abstract of judgment.
WE CONCUR: FRANSON, J., DE SANTOS, J.