Opinion
A155745
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. ERICK AREVALO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 17009610; SCN228209)
Defendant Erick Arevalo was convicted of first degree burglary, corporal injury on a partner/cohabitant, assault with force likely to cause great bodily injury, false imprisonment, misdemeanor battery on a parent/cohabitant, simple assault, and misdemeanor child endangerment. Defendant contends insufficient evidence supports the burglary conviction because he had a possessory right to enter the apartment where the assault occurred. Defendant also argues under People v. Dueñas (2018) 30 Cal.App.5th 1157 (Dueñas), this case must be remanded for the trial court to determine his ability to pay certain fines and fees. Alternatively, defendant asserts his counsel was ineffective for failing to request an ability to pay hearing. We disagree and affirm.
I. BACKGROUND
Defendant was charged in an information, filed on September 18, 2017, with first degree residential burglary (Pen. Code, § 459; count I), attempted murder (§§ 664, 187, subd. (a); count II), domestic violence (§ 273.5, subd. (a); counts III & VI), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count IV), false imprisonment (§ 236; count V), assault with a deadly weapon (§ 245, subd. (a)(1); count VII), child endangerment (§ 273a, subd. (a); counts VIII & IX), and exhibiting a deadly weapon (§ 417, subd. (a)(1); count X). The information also alleged a violent felony enhancement (§ 667.5, subd. (c)(21)) as to count I and a great bodily injury enhancement (§ 12022.7, subd. (a)) as to counts III and IV.
All statutory references are to the Penal Code unless otherwise noted.
Defendant and the victim, E.Z., had been in a long-term relationship, and he is the father of her child. During their relationship, they shared a bedroom in an apartment with E.Z.'s aunt and uncle. Defendant and E.Z.'s relationship deteriorated due to his drinking and accusations of her having an affair. The last day defendant slept in the apartment was June 24. On June 27, defendant moved various belongings out of the apartment, including perfume, leather jackets, a computer, and a backpack. Other belongings of defendant were not removed, such as shirts, pants, and shoes. On June 28, defendant informed E.Z. he was moving out. Defendant removed more of his belongings the following day. During this time, defendant extensively called and texted E.Z., accusing her of having an affair. In one of his texts to E.Z., defendant stated, "If I get deported, I'll hit you where it hurts." E.Z. believed he was blackmailing her and threatening her family. Defendant testified he only intended to tell her family about her infidelity. She informed defendant to stop contacting her or she would contact the police. E.Z. changed the lock on her bedroom door, but not the front door of the apartment.
On July 1, E.Z. was asleep in her bedroom with her child and her child's friend. Conflicting evidence was presented about how defendant entered the bedroom and the events that followed thereafter. E.Z. testified she woke up when she heard a noise, and then saw a shadow at her window, which is accessible from an outside staircase. She stated defendant opened her window, came over to the bed, grabbed her by the neck, and began choking her. She testified the two children in the bed woke up when defendant moved her on top of them. While defendant was choking her, E.Z. stated she could not breathe well or talk and felt like she was "going to die." She further testified defendant dug his fingers into her neck and left eye.
Defendant presented a differing summary of events. Defendant testified he went to the apartment to say goodbye to his child and pick up money from E.Z.'s uncle. He stated he entered both the apartment and the bedroom with his key. Defendant testified E.Z. was injured when he tried to hug his child and she put her arms around the child to prevent him from doing so.
At some point during the altercation, the two children left the bedroom very upset. Once the children left, defendant locked the bedroom door. E.Z. then testified she struggled with defendant, who hit her with a metal closet rod and injured her ankle. Defendant testified he just wanted to talk to E.Z. alone. Eventually, E.Z.'s uncle came to the bedroom door, defendant unlocked the door, and the uncle pulled defendant out of the bedroom.
Police and paramedics arrived, and E.Z. was transported to the hospital. The treating physician observed a broken blood vessel in her left eye and subcutaneous bleeding on her left eye, the left side of her face, and her throat. He also noted bruising on her throat that appeared to be in the pattern of a hand and some straightening of her spine that could have been the result of pressure applied to her throat. At trial, a medical expert testified E.Z.'s injuries were consistent with strangulation.
The jury found defendant guilty of first degree burglary, corporal injury on a partner/cohabitant, assault with force likely to cause great bodily injury, false imprisonment, misdemeanor battery on a parent/cohabitant, simple assault, and misdemeanor child endangerment. The jury acquitted defendant of the remaining charges and hung on the great bodily injury enhancements. The trial court subsequently sentenced defendant to four years in state prison on the burglary conviction, and imposed and stayed the sentences on counts III to V. The court also sentenced defendant to one year in county jail for misdemeanor battery on a parent/cohabitant, imposed various fees and fines, and imposed and stayed the sentences on counts VII and VIII. Defendant timely appealed.
The jury found defendant guilty of lesser included offenses on counts VI to VIII.
II. DISCUSSION
On appeal, defendant argues insufficient evidence supports the burglary conviction, and he was entitled to an ability to pay hearing prior to the court's imposition of various fines and fees. We address each argument in turn. A. Burglary Conviction
Defendant contends insufficient evidence supports the burglary conviction because he had an unconditional possessory right to enter the apartment.
" 'On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
"A person commits burglary when he or she 'enters any house [or] room . . . with intent to commit grand or petit larceny or any felony.' " (People v. Garcia (2017) 17 Cal.App.5th 211, 223, citing § 459.) "There are two exceptions, for persons who, first, have 'an unconditional possessory right to enter as the occupant of that structure' or, second, are 'invited in by the occupant who knows of and endorses the felonious intent.' " (People v. Garcia, supra, at p. 223; see also In re Andrew I. (1991) 230 Cal.App.3d 572, 579 ["Permission to enter, whether express or implied, does not confer upon the entrant an unconditional possessory interest in the premises."].) " 'Because the crime of burglary requires the invasion of a possessory right in a building, one cannot be found guilty of burglarizing one's own residence.' " (People v. Gill (2008) 159 Cal.App.4th 149, 158-159; People v. Gauze (1975) 15 Cal.3d 709, 714 ["defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so."].)
Defendant contends he had an unconditional possessory interest because he had keys to the apartment, had not established another residence, and had not yet removed all of his property from the bedroom.
In assessing whether defendant's possessory interest, if any, is sufficient to reverse the burglary conviction, we find People v. Abilez (2007) 41 Cal.4th 472 (Abilez) instructive. In that case, the defendant resided in a home with his mother and two siblings. The mother was murdered and sexually assaulted while in her bedroom, and various items had been stolen from both her bedroom and one of the sibling bedrooms. The defendant was charged and convicted, in part, of burglarizing "an inhabited dwelling house . . . and inhabited portion of a building . . . ." (Id. at p. 508.) On appeal, the defendant argued his burglary conviction was not supported by sufficient evidence because he could not burglarize his own residence. (Ibid.) The court affirmed the conviction. (Id. at p. 509.) It concluded "[a]lthough the victim may have permitted defendant to be in her home," "[t]he jury could have concluded that, under the circumstances, defendant at that time lacked the victim's consent to enter her bedroom; that he may have had a possessory right to enter the home does not preclude a conviction for burglary on these facts." (Ibid.) The court reached a similar conclusion as to the theft from the sibling's bedroom, holding the defendant's residence in the house was "immaterial" because he "broke into [the sibling's] locked bedroom and stole her electronic equipment." (Ibid.)
Here, as in Abilez, defendant was charged with burglarizing an "inhabited portion of a building" occupied by E.Z. This count in the information is consistent with section 459, which provides in pertinent part: "Every person who enters any house, room, apartment, . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (Italics added.) The Legislature's decision to include "room" in the burglary statute "suggest[s] that the term 'room' was incorporated to permit a defendant who entered a building legally to still be charged with burglary in appropriate circumstances." (People v. Garcia (2016) 62 Cal.4th 1116, 1131.) While defendant may have had keys to the apartment, there is sufficient evidence to support a finding that defendant lacked keys and a possessory right to enter E.Z.'s bedroom. E.Z. testified she changed the lock on her bedroom door after defendant moved out, and defendant entered her bedroom through an outside window rather than via the bedroom door. Had defendant entered the apartment and then attempted to enter the bedroom, E.Z.'s bedroom door lock would have prevented him from doing so. In addition to defendant's inability to enter the bedroom through the apartment, defendant informed E.Z. he was moving out, had not slept in the bedroom since stating he was moving out, and removed many—although not all—of his possessions, and E.Z. informed defendant she no longer wished to communicate with him. Defendant also texted E.Z., hours before the assault, and stated, "I have nothing to do with your lives anymore. Goodbye." Accordingly, the jury reasonably could conclude defendant did not have an unconditional possessory right to enter E.Z.'s bedroom. B. Fees and Fines
As part of sentencing, the trial court imposed a $300 restitution fine and parole revocation fine (§§ 1202.4, subd. (b), 1202.45), a court operations assessment of $40 per count totaling $320 (§ 1465.8), and an immediate critical needs assessment of $30 per count totaling $240 (Gov. Code, § 70373). Defendant contends the trial court erred in doing so because it failed to assess his ability to pay these fines. Defendant asserts Dueñas, supra, 30 Cal.App.5th 1157, entitles him to an ability-to-pay hearing before imposition of such fines and fees. Defendant alternatively argues his counsel was ineffective for failing to request an ability-to-pay hearing. We disagree.
E.Z. did not seek restitution under section 1202.4, subdivision (f).
1. Ability-to-pay Hearing Under Dueñas
In Dueñas, the defendant, a homeless probationer who suffered from cerebral palsy and was unable to work, was convicted of her fourth offense of driving with a suspended license. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Because she was unable to work, Dueñas lost her driver's license when she could not pay assessments for juvenile citations she received as a teenager. (Id. at p. 1161.) Over the ensuing years, Dueñas was convicted of several misdemeanors because she continued to drive without a license. (Ibid.) In connection with the misdemeanors, Dueñas spent months in jail in lieu of paying additional fines, but she remained liable for certain court fees she was unable to pay. (Ibid.) In the most recent case, she was placed on summary probation and ordered to pay three charges within three years. (Id. at p. 1162.) Although the court assured Dueñas she would not be " 'punished' " if she was unable to pay by that time, it also stated, " 'Those [sums] will go to collections without any further order from this court.' " (Id. at p. 1163.) The trial court concluded two of the charges were mandatory regardless of ability to pay, and Dueñas had not demonstrated the " 'compelling and extraordinary reasons' " to excuse payment of the third charge. (Ibid.) The court thus rejected Dueñas's argument that imposition of the charges without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Ibid.)
The Court of Appeal reversed, holding "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The appellate court directed the trial court to stay execution of the restitution fine "unless and until the People prove that Dueñas has the present ability to pay it." (Id. at pp. 1172-1173.)
In People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), Division Two of the Second District Court of Appeal questioned Dueñas's holding, explaining "Dueñas wove together two distinct strands of due process precedent. [¶] The first strand secures a due process-based right of access to the courts[] . . . requir[ing] courts to waive court costs and fees that would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment. . . . [¶] The second strand erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, at p. 325.)
We agree with Hicks the first strand "does not dictate Dueñas''s bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Hicks, supra, 40 Cal.App.5th at p. 326.) Here, defendant has not alleged imposition of the fees and fines at issue impacted his "right to present a defense at trial or to challenge the trial court's rulings on appeal." (Ibid.) Indeed, the court did not impose the contested charges until after the trial concluded and, except for their imposition, defendant does not otherwise challenge them.
We also agree with Hicks the second strand "does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence. The cases prohibiting incarceration for indigence alone rest on the notion that '[f]reedom from imprisonment . . . lies at the heart of the liberty that [the due process] [c]lause protects.' " (Hicks, supra, 40 Cal.App.5th at p. 326, italics added by Hicks; accord People v. Kingston (2019) 41 Cal.App.5th 272, 280.) Accordingly, "imposing an assessment, fine or fee upon a criminal defendant at the time of sentencing does not mandate instant incarceration and thus does not infringe" on a defendant's liberty interest. (Hicks, supra, at p. 326.) Although Dueñas determined court assessments subjected indigent defendants to "additional punishment" because their failure to pay could give rise to civil judgments with significant negative consequences, it "cites no authority for the proposition that those consequences constitute 'punishment' rising to the level of a due process violation." (People v. Caceres (2019) 39 Cal.App.5th 917, 927.)
Despite these concerns, we find it unnecessary to decide whether the charges imposed by the trial court infringed on defendant's constitutional rights because it is wholly speculative that the "additional punishment" discussed in Dueñas will occur. In Dueñas, the defendant had already suffered "cascading consequences" because of "a series of criminal proceedings driven by, and contributing to, [her] poverty," and she had already been ordered to pay the charges by the end of her probation period. (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.) Here, however, defendant committed a violent assault against a former partner. His crime was not driven by poverty or likely to " 'contribut[e] to' that poverty such that [he will be] trapped in a 'cycle of repeated violations and escalating debt.' " (People v. Caceres, supra, 39 Cal.App.5th at p. 928 [likelihood of committing crime of criminal threats not affected by one's financial circumstances].) Defendant has no prior criminal convictions, which fails to demonstrate "a cycle of repeated violations." (Dueñas, supra, at p. 1164 & fn. 1.) Defendant was employed at the time of the offense and, according to his sentencing memorandum, defendant "feels confident that he can find work relatively soon upon his release." Defendant also owned a computer, speaker, and leather jackets. While "[t]hese are hardly indications of wealth," the record indicates the amount of $860 imposed on defendant will not saddle him "with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced." (People v. Johnson (2019) 35 Cal.App.5th 134, 139.) Thus, even assuming Dueñas was correctly decided on its facts, the hardship here is not akin to the one imposed in that case.
The fact that defendant was appointed counsel in this case does not establish he was unable to pay the fines and fees imposed. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["a defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine"].) --------
Moreover, the situation in which defendant has put himself—a four-year sentence in state prison—does not implicate the same due process concerns as were at issue in Dueñas. Defendant, unlike Dueñas, does not face incarceration because of an inability to pay assessments and fines. Defendant is in prison because he violently assaulted his former partner.
Lastly, Dueñas does not support a remand to the trial court to consider whether the fines and fees imposed on defendant should be stayed. Because of section 1202.4's "prohibition on considering the defendant's ability to pay the minimum fine," Dueñas concluded "the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants." (Dueñas, supra, 30 Cal.App.5th at p. 1170.) As the court explained, "In most cases, a defendant who has successfully fulfilled the conditions of probation for the entire period of probation has an absolute statutory right to have the charges against him or her dismissed" and be relieved of their resulting penalties and disabilities. (Ibid.) If, however, "a probationer cannot afford the mandatory restitution fine, through no fault of his or her own he or she is categorically barred from earning the right to have his or her charges dropped and to relief from the penalties and disabilities of the offense for which he or she has been on probation, no matter how completely he or she complies with every other condition of his or her probation. Instead, the indigent probationer must appeal to the discretion of the trial court and . . . persuade [it] that dismissal of the charges and relief from the penalties of the offense is in the interest of justice." (Id. at pp. 1170-1171.) Unlike Dueñas, defendant has not been placed on probation, and no issue of his entitlement to expungement exists. Nor, assuming he is presently unable to pay the fines and fees, does he explain how their imposition has or may result in his being treated differently than wealthy defendants "solely and exclusively [because of his] poverty." (Id. at p. 1171.) We therefore conclude defendant is not entitled to a remand under Dueñas.
2. Ineffective Assistance of Counsel
Defendant alternatively argues his counsel was ineffective for failing to preserve the inability-to-pay issue on appeal. To prove this claim, defendant must overcome a presumption that he received effective assistance by demonstrating his trial counsel's representation fell below an objective standard of reasonableness resulting in demonstrable prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Under Strickland v. Washington (1984) 466 U.S. 668, an ineffective assistance claim requires proof of both deficient representation and prejudice flowing from an attorney's substandard performance. (Lucas, supra, at p. 436, citing Strickland, at pp. 687-689.) Because this is a direct appeal, defendant must show that his counsel's failure to object lacked any "rational tactical purpose" and, but for his counsel's deficiencies, there is a reasonable probability that the result would have been different. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.)
The record demonstrates defendant cannot meet this burden. The probation report states defendant has "employable skills," historically was "[e]mployed 75% to 100% of the time," and prior to his arrest was employed as a kitchen helper/food preparer at a local restaurant and as a house cleaner. Likewise, defendant's sentencing memorandum states defendant has worked as a house cleaner for approximately 10 years, has worked at various restaurants, and "has skills as a mechanic and in the construction field." The memorandum further states defendant "has many friends who work in the restaurant industry who will help him find work," and defendant "feels confident that he can find work relatively soon upon his release." In light of the record demonstrating his ability to work and earn money, defendant fails to establish either that his counsel's failure to object was irrational or that there is a reasonable probability that the result would have been different had his counsel done so. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay a restitution fine does not necessarily require " 'existing employment or cash on hand' " because the court may also consider the " 'defendant's ability to pay in the future,' " including his ability "to earn money after his release from custody"].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.