Opinion
D080805
06-30-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID NATHAN ARIAS, Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and Joseph Anagnos, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, No. FSB19000275 Cheryl C. Kersey, Judge. Affirmed as modified.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and Joseph Anagnos, Deputy Attorney General, for Plaintiff and Respondent.
CASTILLO, J.
A jury found David Nathan Arias guilty of assault with a semiautomatic firearm with true findings on personal use of a firearm, great bodily injury allegations, and being a felon in possession of a firearm. Arias' counsel on appeal has filed an opening brief asking this court to conduct an independent review of the record pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We granted Arias the opportunity to file a supplemental brief on his own behalf and received no response. As we will explain, the issues identified by counsel lack arguable merit. As part of our independent review, we asked the parties to brief the question whether the trial court erred when calculating Arias' custody credits under Penal Code section 2933.1, subdivision (c). The parties agree, and we concur, Arias is entitled to one additional day of credit and the judgment shall be modified accordingly.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 20, 2018, Steve A. was at a bar drinking and arguing via text messages with his ex-girlfriend, Angela G. Steve received a video from Angela in which Arias pointed a semiautomatic firearm at the camera, said, "Pop, pop, pop," and laughed. Gabriel Sauceda, who was standing behind Arias, flipped open a pocketknife. Steve believed the men were challenging him to fight. Steve and Angela continued to text each other.
Steve left the bar, texted Angela that he was coming over, and walked toward Angela's house intending to fight the two men in the video. He texted Angela when he was a block away and told her, "Your nigga's about to get fucked up." When Steve reached the street where Angela lived, he noticed two people heading toward him. Sauceda yelled, "There's that nigger." Steve thought they would fight when Arias jumped out of the bushes and started shooting at him. Steve testified that he did not punch or kick Arias, and never brandished a weapon. Steve was shot six times and fell to the ground.
Arias was charged with attempted willful and premeditated murder (§§ 664/187, subd. (a)), along with firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c) &(d)) and great bodily injury (§ 12022.7, subd. (a)) enhancements (count 1); assault with a semiautomatic firearm (§ 245, subd. (b)) with personal use of a firearm (§ 12022.5, subd. (a)) and great bodily injury enhancements (§ 12022.7, subd. (a)) (count 2); and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3). It was further alleged as to counts one and two that Arias had a prior serious felony conviction pursuant to section 667, subdivision (a) and sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
Sauceda was charged with being an accessory after the fact. (§ 32.) He approached the district attorney seeking "a deal" to get out of jail. He later pled no contest in exchange for a dismissal of the charge and his agreement to cooperate in this case. He was sentenced to three years in prison on that plea, released on his own recognizance, and was eligible for felony probation after completing his testimony. He then suffered a subsequent arrest and charges for, among other things, raping and beating his girlfriend. When he failed to appear for a hearing, he was sentenced to two years in prison instead of three because of a change in the law.
Arias' trial started in February 2020, but the court declared a mistrial the following month due to defense counsel's illness. Trial was reset but continued over Arias' objections due to COVID-19 emergency orders, the unavailability of courtrooms, Arias' quarantine status, and counsels' unavailability. The trial court denied Arias' motion to dismiss based on a violation of his right to a speedy trial. Trial started on March 9, 2022. The jury was unable to reach a unanimous verdict on attempted murder (count 1), with the court declaring a mistrial and dismissing this count on the People's motion. The jury found Arias guilty of the remaining charges and found true all enhancements.
Arias waived a jury trial on his prior convictions and the section 1170, subdivision (b) sentencing factors. The court found Arias had a prior residential burglary conviction and this prior conviction established the felon in possession allegation. It also found several factors in aggravation true beyond a reasonable doubt. The court sentenced Arias on April 29, 2022, to a total determinate term of 31 years. This included the upper term of nine years on count two, doubled under the three strikes law, plus the upper term of ten years under section 12022.5, subdivisions (a) through (e) and the upper term of three years under section 12022.7, subdivisions (a) through (e) on that count. It stayed the five-year term pursuant to section 667, subdivision (a). The court also sentenced Arias to one-third the middle term of 16 months on count three, which it stayed under section 654.
The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and stayed a $10,000 parole revocation restitution fine (§ 1202.45). It also ordered Arias to pay a court operations fee of $40 (§ 1465.8) and a $30 conviction assessment per count (Gov. Code, § 70373). The court awarded credit for 1,287 actual days in custody, plus 192 days conduct credit under section 2933.1, subdivision (c) for a total credit of 1,479 days.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel raised no specific issues on appeal and instead, identified five possible, but not arguable, issues pursuant to Anders, supra, 386 U.S. 738, as follows, whether the trial court erred by: (1) denying Arias' motion to dismiss based on a denial of his constitutional and statutory speedy trial rights; (2) denying Arias' motion for a mistrial during jury selection; (3) excluding evidence of Steve's history of violence directed toward Angela; (4) prohibiting the impeachment of Sauceda with his pending charges; and (5) refusing to instruct on self-defense. Below we briefly address the issues identified by appellate counsel in chronological order.
A. Right to Speedy Trial
1. State Statutory Right
In relevant part, section 1382, subdivision (a)(2), provides that "[i]n a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment on an ... information," "[t]he court, unless good cause to the contrary is shown, shall order the action to be dismissed ..." We review a trial court's good-cause determination for an abuse of discretion. (People v. Sutton (2010) 48 Cal.4th 533, 546.) "Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (In re Lawanda L. (1986) 178 Cal.App.3d 423, 428.)
"A waiver of statutory speedy trial rights occurs when defense counsel consents to or requests a delay in the proceedings. Consent may be express or implied (§ 1382(a)(2)(B), (3)(B)), and is inferred from silence. '[F]ailure of defendant or his counsel to make timely objection to a postponement constitutes implied consent to the postponement.'" (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 969.) "Defense counsel, as part of his or her control of the procedural aspects of a trial, ordinarily has authority to waive the statutory speedy trial rights of his or her client, even over the client's objection, as long as counsel is acting competently in the client's best interest. [Citations.] This is because statutory speedy trial rights are not among those rights that are considered so fundamental that they are 'beyond counsel's primary control.'" (Ibid.)
2. Analysis
The trial court arraigned Arias on February 14, 2019, and scheduled trial for March 25, 2019. At that time, the section 1382 statutory deadline for trial was April 15, 2019. The court found good cause to continue trial to February 11, 2020, primarily based on defense counsel's unavailability. Trial was then continued to February 24, 2020, due to defense counsel's illness. Defense counsel's illness resulted in several continuances until the court declared a mistrial on March 2, 2020. At that time, the section 1382 statutory deadline for trial was May 1, 2020, with trial scheduled to start on April 13, 2020.
However, "[i]n early March 2020, the Governor of California declared a state of emergency in California, and the President declared a national emergency due to the COVID-19 pandemic. Based on health recommendations, the Chief Justice of the State of California issued statewide emergency orders suspending in-person jury trials and, among other things, extending statutory deadlines for trials in criminal proceedings." (Elias v. Superior Court (2022) 78 Cal.App.5th 926, 931.) Specifically, on March 23, 2020, by order of the Honorable Chief Justice of California Tani G. Cantil-Sakauye, all jury trials were suspended and extended for a period of 60 days from the date of the order. (California Courts Newsroom, COVID-19 News Center, Court Emergency Orders, <http://newsroom.courts.ca.gov/covid-19-news-center/court-emergency-orders> [as of June 30, 2023], archived at <https://perma.cc/G86N-PKSH>.) On March 30, 2020, the Chief Justice, as Chair of the Judicial Council, issued a statewide order finding good cause to "[a]uthorize superior courts to issue implementation orders that: . . . Extend the time period provided in section 1382 of the Penal Code for the holding of a criminal trial by no more than 60 days from the last date on which the statutory deadline otherwise would have expired." (Ibid.) On April 29, 2020, the Chief Justice ordered an additional 30-day extension, bringing extensions of time to hold criminal trials during the pandemic to a total of 90 days. (Ibid.)
Thereafter, the Chief Justice and the Presiding Judge of the San Bernardino Superior Court issued a series of emergency orders between April 2020 and July 2021 extending the time period provided in section 1382 for holding criminal trials. Our independent review of all continuances shows they were based on the COVID-19 emergency, subsequent emergency orders of the Chief Justice of California and the Presiding Judge of the San Bernardino Superior Court, and findings of good cause made by the trial court based on the quarantine status of the parties, counsel being engaged in another trial, or on the unavailability of courtrooms countywide. We conclude that Arias' speedy trial claim lacks arguable merit.
B. Denial of Mistrial During Jury Selection
During jury selection, the prosecutor impliedly disclosed Arias was a felon when referring to count three as being a felon in possession of a firearm. The trial court denied defense counsel's request for a mistrial, finding no prejudice because the "word felon was made very quickly, and it wasn't made in a way identifying the defendant [as being the] felon in possession, but it was just stated as a crime." It instructed the prosecutor to not use the word felon until Arias decided whether to stipulate to being a felon. The parties later stipulated that Arias was a felon and the jury was so instructed. Denial of the mistrial is not reasonably arguable.
C. Evidentiary Issues
1. Exclusion of Steve's History of Violence Toward Angela
The trial court sustained a relevance objection regarding whether Steve's relationship with Angela was ever violent. Defense counsel never made an offer of proof. Appellate counsel suggests this evidence was admissible as relevant to its effect on Arias. "No evidence is admissible except relevant evidence." (Evid. Code, § 350.)" 'Relevant evidence' means evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210) Additionally, Evidence Code section 352 permits courts to exclude relevant evidence if its probative value is substantially outweighed by the probability of prejudice. This is an exercise of discretion we review under "the deferential abuse of discretion standard" (People v. Kipp (2001) 26 Cal.4th 1100, 1121), and we will not disturb the trial court's decision unless it was arbitrary, capricious or patently absurd and resulted in a miscarriage of justice. (People v. Jones (1998) 17 Cal.4th 279, 304.) This issue is not reasonably arguable because the evidence was not relevant, and even if relevant, it was properly excludable under Evidence Code section 352. 2. Exclusion of Impeachment Evidence
The trial court prohibited the defense from inquiring into Sauceda's pending charges related to his girlfriend under Evidence Code section 352 but allowed counsel to refer to the fact Sauceda was currently in custody, he was testifying under an immunity agreement and had pled guilty to a charge related to this case. It also allowed Sauceda's impeachment with a 2007 felony conviction for reckless endangerment of a child. During his testimony, Sauceda admitted he had a felony conviction for reckless endangerment of a child, pled guilty to being an accessory after the fact in this case, agreed to cooperate in the prosecution of Arias, and had unrelated charges pending in Riverside. He also admitted violating his plea agreement and, as a result, being sentenced to prison. Appellate counsel suggests the trial court erred by prohibiting impeachment of Sauceda with his pending charges.
"Except as otherwise provided by statute, the . . . jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including . . . [¶] (e) His character for honesty or veracity or their opposites. [¶] (f) The existence or nonexistence of a bias, interest, or other motive." (Evid. Code, § 780.) A "prosecution witness can be impeached by the mere fact of pending charges." (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080.) Nevertheless, the trial court retains broad discretion in controlling the examination of witnesses, including the scope of cross-examination of prosecution witnesses. "Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' [Citation.] "In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623.) This issue is not reasonably arguable because the jury heard evidence from which it could gage Sauceda's veracity and possible bias, including the fact he had new charges pending against him.
D. Refusal to Instruct on Self-Defense
The trial court refused to instruct on self-defense or imperfect selfdefense finding sufficient evidence did not support these instructions. Appellate counsel suggests the trial court erred in refusing these instructions. A defendant acts in defense for an assault charge under section 245 only if the defendant has an honest and reasonable belief that bodily injury is about to be inflicted on the defendant or others. The threat of bodily injury must be imminent, and the defendant may only use such force as is reasonable under the circumstances. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [elements of self-defense for an assault charge]; CALCRIM No. 3470 [laying out elements for defense of self and others].) "[B]oth selfdefense and defense of others, whether perfect or imperfect, require an actual fear of imminent harm." (People v. Butler (2009) 46 Cal.4th 847, 868.) The trial court's failure to give self-defense instructions will be upheld on appeal if the record contains no substantial evidence to support the instructions. (In re Christian S. (1994) 7 Cal.4th 768, 783.)
The evidence shows Arias jumped out of bushes and started shooting at Steve. Steve testified he did not punch or kick Arias, and never brandished a weapon. Sauceda testified that after shots were fired he saw Steve lunge and then more shots were fired. Sauceda never saw Steve attempt to punch or kick Arias before Steve lunged at Arias. This issue is not arguable because substantial evidence does not support these instructions.
E. Custody Credits
The trial court awarded Arias 1,287 days of actual credit and 192 days of credit under section 2933.1, subdivision (c) which limits the award of presentence conduct credits to a maximum of 15 percent of a defendant's actual period of presentence confinement for certain felons, including those previously convicted of first degree burglary where a nonaccomplice is present, like Arias. The 15 percent conduct credit is limited to the largest whole number that does not exceed the 15 percent limitation. (People v. Ramos (1996) 50 Cal.App.4th 810, 816-817.) We asked the parties to brief the question whether Arias is entitled to one additional day of presentence custody credit under section 2933.1, subdivision (c). The parties agree, and we concur, Arias is entitled to an additional day of credit and modify the judgment accordingly. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered."].)
F. Summary
Review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues referred to by Arias' appellate counsel, have disclosed no other reasonably arguable appellate issues. We find that Arias was adequately represented both at trial and on appeal.
DISPOSITION
The judgment is modified to reflect 193 days of presentence custody credit under Penal Code section 2933.1, subdivision (c), increasing appellant's total award of presentence custody credit from 1,479 days to 1,480 days. The trial court is directed to prepare an abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P.J. O'ROURKE, J.