Opinion
E051035
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE DEJESUS CORONA, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF064912)
OPINION
APPEAL from the Superior Court of Riverside County. John I. Kelly (retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Elisabeth Sichel, Judges. Affirmed in part as modified, reversed in part with directions.
Judge Kelly presided over defendant's trial. Judge Sichel conducted the sentencing hearing.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Jose DeJesus Corona appeals from his conviction of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1); count 1); misdemeanor exhibiting a weapon other than a firearm (Pen. Code, § 417, subd. (a)(1); counts 3 and 5); and misdemeanor spousal battery (Pen. Code, § 243, subd. (e)(1); count 4). Defendant contends the prosecutor committed prejudicial misconduct in argument to the jury by suggesting that nontestifying witnesses had called 911 to report seeing defendant assault the victim with a knife. He also challenges the propriety of various fees and charges the trial court imposed. We conclude the trial court erred in imposing the court security fee and conviction assessment fee as conditions of probation, although those fees were otherwise proper. We further conclude the domestic violence fund fee and costs of probation supervision must be reversed. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL BACKGROUND
In November 2008, defendant and Cynthia Ann Robinson were living together on the streets in Palm Springs. Robinson testified that on November 20, they drank several 32-ounce bottles of malt liquor. Early in the afternoon, they were at Sunrise Park. Corona asked Robinson to go to a "Cooling Center," a place for homeless people to sober up, but she refused, and they argued. Robinson "kind of . . . blacked out," but she remembered that defendant took her hands and pulled her. She resisted because she wanted to continue drinking with friends. After about 15 minutes, he had pulled her about 100 yards to the library. She broke free several times, but he chased her, telling her she had had enough to drink and they needed to leave the park. One of her friends named Charles told her he had called 911 and told them Robinson and defendant "were about to kill each other." The police arrived, and Robinson told an officer she had been fighting with defendant and had been trying to get away from him. She testified that while they had been fighting, she had not been afraid defendant would harm her. She knew defendant carried a pocket knife, but he had not pulled the knife out that day. She denied she had told a police officer that she and defendant had been fighting over his request for sexual favors, that defendant had grabbed her arms, causing bruises, that defendant had threatened to kill her if she left, or that he had punched her in the back of the neck. She testified that bruises on her arms had been caused by a fight with a girl a week earlier.
A group of teenagers who were outside a nearby youth club witnessed the incident. I.L. testified that he saw a man about 100 yards away pushing a woman. The woman started walking away, and the man grabbed her by the back of the neck and knocked her down. She got up and, he grabbed her again and pulled her back down. The man and woman were arguing, but I.L. could not hear what they were saying. The group of teenagers followed the man and woman. One of the teenagers said something to them, and the man turned around and pulled something shaped like a knife out of his pocket. One of the teenaged girls in the group used a cell phone to call the police. I.L. could not identify defendant in court.
Another of the teenagers, A.D., saw the man push the woman several times hard with both hands, causing her to fall to the ground. The man stood over the woman, screamed, and swung his hands at her while she tried to block the blows. His hands hit her in the face. The woman stood up, and the man placed her in a headlock. The teenagers went into the youth club to get a staff member. When they came out, A.D. asked the man why he was beating the woman. The man turned around, pulled out a knife, opened it, and said, "'Come fight me then,'" in an angry voice. A.D. called the police to report "there was a bum beating on a girl," and he had pulled a knife out on A.D. A.D. did not see defendant pull the knife on anyone else.
A third teenager, A.L., saw the man put his arms around the woman's neck and throw her to the ground. The woman walked away, and the man jogged after her. A.L. yelled at the man to take his hands off the woman, and the man pulled out something; A.L. could not see what it was, although he thought it was a knife. A.L. identified defendant in the courtroom as the man he had seen that day.
At 4:12 p.m. that day, Palm Springs Police Officer Nicholas Barth responded to a 911 call reporting "a woman that had a knife pulled on her." He approached Robinson in the parking lot next to Sunrise Park. Robinson was crying. Her breath smelled of alcohol, her gait was unsteady, and her speech was slurred. Robinson said she had refused defendant's request for sexual favors, and he had become upset. He grabbed her, squeezed her arms, and forced her to the ground when she tried to walk away. Officer Barth saw bruises on her arms that could have been caused by that type of force. Robinson said defendant had placed a knife blade against her neck and had threatened to kill her if she left him. Defendant then put the knife away and punched her in the back of the neck and head. She showed the officer a red mark at the base of her neck. Officer Barth asked Robinson if she wanted a temporary emergency protective order, and she said she did, because she believed defendant would come back and kill her.
Palm Springs Police Officer Chad Nordman testified that he had heard a dispatch that afternoon reporting that a man was holding a knife to a woman's throat in Sunrise Park. The officer headed to the area, where he saw defendant, who matched the broadcast description. Officer Nordman called defendant over, searched him, and found a pocket knife in defendant's pants pocket. Defendant told the officer he and his girlfriend had had an argument, and she had swung at him with the knife, so he took it from her. He also said the knife was his, and he had it for protection.
The jury found defendant guilty of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1); count 1); misdemeanor exhibiting a weapon other than a firearm (Pen. Code, § 417, subd. (a)(1); counts 3 and 5); and misdemeanor spousal battery (Pen. Code, § 243, subd. (e)(1); count 4) but found him not guilty of criminal threats (Pen. Code, § 422; count 2.)
The trial court placed defendant on probation for 36 months on various terms and conditions.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Prosecutor's Argument
Defendant contends the prosecutor committed misconduct in his rebuttal argument by suggesting that nontestifying witnesses had called 911 to report seeing defendant with a knife.
1. Additional Background
During argument to the jury, defense counsel emphasized the lack of collaboration for Robinson's statement to Officer Barth that defendant had threatened her with a knife. He argued that if the prosecutor had a 911 tape in which a caller had reported that, the prosecutor would have introduced it into evidence. Specifically, he stated: "The government couldn't get one witness to come in and say that. And they kind of alluded to it; right? Other people called the police and told them what was going on. Do you think that's true? Do you think if they had a 911 tape, 'There's a man putting a knife to a woman's throat,' you don't think they would have played that for you? You don't think they would have tracked that person down and brought them in here to talk to you?" Defense counsel repeated several times that none of the eyewitnesses had testified that defendant had put a knife to Robinson's throat, and the lack of an eyewitness meant it had never happened. Defense counsel also argued as a "hypothetical," over the prosecutor's objection, that "if I told you that there was a surveillance video that caught what happened that day, possibly from the library or something, and you were very eager to see it because it would clear up a lot of questions for you, I would submit to you that you're not convinced beyond a reasonable doubt that [defendant], in fact, is guilty of Counts 1, 2, and 3." No video or DVD was introduced into evidence.
In his rebuttal argument, the prosecutor stated, "The 911 calls. Apparently defense counsel is under the illusion that nobody ever anonymously calls 911. When law enforcement responds to the scene, they contact who they can, and they interview who they can, and who's available, and who's still there. [Robinson] said—remember I asked her what she did after, and she said, 'Well, I walked back to this place where I sleep.' [¶] 'Were your friends there?' 'No, they were all gone.' What a surprise, that people left when the cops were there, and sometimes people don't want to speak with the police. Sometimes they don't want to be involved. [¶] Because there isn't a DVD or somebody else saying, 'Yeah, for sure I saw the knife' that doesn't mean it didn't happen."
Defense counsel objected on the ground of improper argument, but the trial court overruled the objection. The prosecutor continued, "That doesn't mean it didn't happen. The reality is—to give another example—should we not prosecute a murder because nobody saw it happen? Sometimes we have to rely on circumstantial evidence. And the law will tell you that circumstantial evidence, if you believe it—and there's one reasonable conclusion is just as good as direct—that's exactly what the hypothetical that defense counsel used was about. That sometimes we look at the circumstances and know what happened, even though we didn't see it or nobody saw it. We did have somebody witness it. It was [Robinson]. And the circumstantial evidence backs up the direct evidence she gave as her testimony [to the police officer]."
The trial court instructed the jury to decide the case based only on the evidence presented in the courtroom and that nothing the attorneys said was evidence. (CALCRIM No. 104.) The trial court further instructed the jury that neither side was required to call every possible witness. (CALCRIM No. 300.)
During deliberations, the jury requested the Palm Springs 911 call logs from 3:00 to 5:00 p.m. The trial court responded, "The requested call logs were not introduced into evidence and therefore the Court is unable to provide them to you. Please see CALCRIM section 222 for further information in this regard."
2. Analysis
A prosecutor's conduct violates the federal Constitution when it infects the trial with such unfairness that it denies the defendant the right to a fair trial. (People v. Ervine (2009) 47 Cal.4th 745, 805.) A prosecutor's conduct violates the state Constitution "if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (Id. at p. 806.) However, "[t]he prosecution is given wide latitude during closing argument to vigorously argue its case and to comment fairly on the evidence, including by drawing reasonable inferences from it. [Citations.]" (People v. Lee (2011) 51 Cal.4th 620, 647.)
The evidence at trial indicated that several people had called 911. Robinson testified that her friend Charles had called 911 and reported that she and defendant "were about to kill each other." A.D. testified that he had called 911 and said there was "a bum beating on a girl." He also testified that defendant had pulled a knife on him. I.L. testified that a female friend had "called the cops." Officer Nordman testified that he responded to a call "regarding a male with a knife holding it to the throat of a female," although he did not know the identity of the caller. Officer Barth testified that he responded to a 911 call "in regards to a woman that had a knife pulled on her," and that multiple calls had been made to dispatch about the incident.
Based on that extensive evidence, we conclude the prosecutor's argument was fair comment. (People v. Lee, supra, 51 Cal.4th at pp. 647-648.)
B. Imposition of Fees and Charges
Defendant contends the trial court erred in imposing court security fees, criminal assessment fees, a booking fee, a domestic violence fee, and the costs of probation services, either because the fees and charges did not comply with statutory requirements, because the trial court did not make required findings, or because they were not imposed when judgment was pronounced.
1. Additional Background
The probation report recommended imposition of a security fee of $20 under Penal Code section 1465.8, subd. (a)(1) and a conviction assessment fee of $30 under Penal Code section 1202.4 for each of the four counts of which defendant was convicted. However, the probation report did not mention a booking fee, a fee to the Domestic Violence Fund, or the costs of probation supervision.
The minute order of the sentencing hearing states: "Formal Probation is Granted for a period of 36 months under the following terms and conditions:
"[¶] . . . .[¶] As to count(s) 001 003 004 005, security fee of $30.00 imposed for each convicted charge. (PC 1465.8)
"Pay conviction assessment fee for the following convicted count(s) 001 003 004 005. (GC 70373). [$30. each misd and felony]
"Pay booking fees of $409.43 (GC 29550).
"Pay fee of $400.00 to the Domestic Violence Fund (PC 1203.097(a)(5)). [¶] . . . . [¶]
"Pay costs of probation supervision in an amount to be determined by probation.
Based on the level of supervision, the costs will range from $1908.00 to $. (PC 1203.1b). [¶] . . . .[¶]
"Defendant Accepts Terms and Conditions of Probation."
The trial court orally imposed the court security fees and conviction assessment fees at the sentencing hearing. However, the reporter's transcript of the sentencing hearing does not show that the trial court orally ordered defendant to pay the booking fee, domestic violence fund fee, or costs of probation.
2. Forfeiture
The People argue that defendant failed to object in the trial court to the fees and charges he now challenges, and he has therefore forfeited his objections. The People make no response on the merits to defendant's arguments.
As a general rule, unless the defendant objects to his sentence in the trial court, he may not raise the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-356; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1075.) However, if a fee is unauthorized, error in imposing it is reviewable even without an objection. (People v. Smith (2001) 24 Cal.4th 849, 852.) Sufficiency of the evidence claims are also not forfeited by a failure to object in the trial court. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco).)Defendant contends both that certain fees and charges were unauthorized and that there was no evidence of his ability to pay. Moreover, the booking fee, domestic violence fund fee, and costs of probation services were imposed in the minute order, but the trial court did not orally pronounce such fees, and the probation officer's report did not recommend such fees. Defendant therefore had no meaningful opportunity to object to those fees and costs in the trial court, and his objections are not forfeited. We will therefore address his arguments on the merits.
3. Court Security Fee and Conviction Assessment Fee
Defendant contends the trial court erred in imposing a court security fee and conviction assessment fee as conditions of probation.
Although a court security fee under Penal Code section 1465.8 is mandatory, such a fee is collateral to a defendant's crimes and punishment and may not be made a condition of probation. (Pacheco, supra, 187 Cal.App.4th at p. 1402.) In Pacheco, the court held the defendant's challenge to such fee was "not forfeited by his failure to have raised it below because imposition of this fee as a probation condition was unauthorized as it could not lawfully have been imposed under any circumstances and it is clear and correctable on review regardless of any factual interpretation of the record presented at sentencing. [Citations.]" (Ibid.)A court security fee is enforceable only by means of a civil action, "and the order should thus be imposed as a separate order entered at judgment. [Citations.]" (Id. at p. 1403; see also People v. Flores (2008) 169 Cal.App.4th 568, 578.)
Pacheco did not address a conviction assessment fee under Government Code section 70373. Like a court security fee, a conviction assessment fee is mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.) However, like a court security fee, a conviction assessment fee is collateral to a defendant's crimes and punishment—the stated purpose for the fee is "[t]o ensure and maintain adequate funding for court facilities . . . ." (Ibid.) Thus, like the court security fee, such a fee should be imposed as a separate order entered at judgment, not as a condition of probation for the reasons expressed in Pacheco, supra, 187 Cal.App.4th at pp. 1402-1403.
We will therefore order the probation order modified to eliminate any requirement that defendant pay the court security fee and conviction assessment fee as conditions of probation.
4. Booking Fee
Defendant contends the trial court erred in failing to find he had the ability to pay the booking fee, and that the fee was therefore unauthorized. He further contends such a fee is collateral to his conviction and may not be imposed as a condition of probation.
Although the minute order states the fee of $409.43 was imposed under "GC 29550," the statutory basis for the fee is in fact unclear. Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or processing arrestees into a county jail; those sections vary, based on which agency conducted the arrest. Here, the record indicates that officers of the Palm Springs Police Department made the arrest. Arrests made by city officers are governed by Government Code sections 29550, subdivision (a)(1) and 29550.1.
Government Code section 29550, subdivision (a) allows a county to impose a fee on a city "for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city . . . ." Government Code section 29550.1 in turn states, "Any city . . . whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city . . . for the criminal justice administration fee." (Italics added.) Nothing in Government Code section 29550.1 requires a determination of the defendant's ability to pay.
The Legislative Counsel's Digest of a 1993 bill that amended Government Code section 29550.1 noted then-existing law authorized that a judgment of conviction could contain an order for the payment of the criminal justice administration fee. The express purpose of the amendment was to "require that the judgment of conviction contain an order for payment of the fee." (Legis. Counsel's Dig., Assem. Bill No. 2286 (1993-1994 Reg. Sess.) 5 Stats. 1993, Summary Dig., p. 364.) (Italics added.) The express language of the statute and its legislative history make clear that the fee imposed under Government Code section 29550.1 is mandatory.
Somewhat paradoxically, in contrast, Government Code section 29550.2, which applies if certain agencies other than those listed in Government Code section 29550.1 were the arresting agencies, authorizes the fees but makes them subject to a defendant's ability to pay and therefore discretionary. (See, e.g., People v. Rivera (1998) 65 Cal.App.4th 705, 712 ["The fees [under Government Code section 29550.2] are limited to the actual administrative costs and are assessed against all offenders who have the ability to pay the fee . . . ."]; Pacheco, supra, 187 Cal.App.4th at pp. 1398-1400 [fee imposed under Government Code section 29550.2 requires a finding of ability to pay].) Here, however, the fee could only have been imposed under Government Code section 29550.1, which contains no requirement of a finding of ability to pay and makes the fee mandatory.
When a fine or fee is mandatory, the sentence is unauthorized and is subject to correction at any time. (See, e.g., People v. Martinez (1998) 65 Cal.App.4th 1511, 1519 [criminal laboratory analysis fee was mandatory, and not subject to a finding of ability to pay; trial court's failure to impose such a fee was jurisdictional error subject to correction on appeal].) Thus, the trial court's failure to orally pronounce the fee at the sentencing hearing is immaterial. There was no error.
Moreover, the statute provides that the reimbursement of the fee "shall" be imposed as a condition of probation. (Gov. Code, § 29550.1) We will therefore affirm the imposition of the booking fee.
5. Domestic Violence Fund Fee and Cost of Probation Services
Defendant contends the domestic violence fund fee and cost of probation services must be reversed because the trial court did not order those fees on the record during sentence; such fees are not mandatory; and the trial court made no determination of his ability to pay.
The domestic violence fund fee and the cost of probation services were listed in the minute order for the sentencing hearing but were not orally imposed on the record. In the event of a conflict, the oral pronouncement of judgment will generally prevail over a minute order. (People v. Tuggles (2009) 179 Cal.App.4th 339, 388 [when fees for preparation of probation report and for services of appointed counsel were not reflected in the oral pronouncement of judgment, they were struck on appeal].)
Neither the domestic violence fee nor the cost of probation services was mandatory. The $400 domestic violence fee was imposed under Penal Code section 1203.097, subdivision (a)(5), which gives the trial court discretion to reduce or waive the fee if the court finds the defendant does not have the ability to pay it. The probation supervision fee was imposed under Penal Code section 1203.1b, which requires the trial court to "make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . ." (Pen. Code, § 1203.1b; see also People v. Bradus (2007) 149 Cal.App.4th 636, 641 [noting that the trial court is statutorily authorized to order payment of "the costs of probation, depending on a defendant's ability to pay, [but] such costs . . . cannot legally be imposed as conditions of probation."].) "The court's finding of the defendant's present ability to pay need not be express, but may be implied through the content and conduct of the hearings. [Citation.]" (Pacheco, supra, 187 Cal.App.4th at p. 1398.) But even an implied finding of ability to pay must be supported by substantial evidence. (Ibid.)
If a person is granted probation for a domestic violence crime, "the terms of probation shall include all of the following: [¶] . . . [¶] (5) A minimum payment by the defendant of four hundred dollars ($400) . . . . If, after a hearing in court on the record, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee." (Pen. Code, § 1203.097, subd. (a)(5).)
"[I]n any case in which a defendant is granted probation . . . the probation officer . . . taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . . The court shall order the defendant to appear before the probation officer . . . to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer . . . shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Pen. Code, § 1203.1b, subd. (a).)
The record contains no evidence that either the probation officer or the court made a determination of defendant's ability to pay the probation supervision plea or domestic violence fund fee. Indeed, the record before us would preclude such a finding. The probation report indicates that defendant had been laid off from his employment as a dishwasher about eight months before committing the current crimes. Although the probation report states he was receiving $216 per month in unemployment benefits, the report also indicates that child support payments for his six (or possibly seven) children were deducted from his unemployment check. Moreover, a psychological evaluation of defendant was prepared before sentencing. The report indicated defendant had been placed in special education throughout most of his schooling and had been diagnosed as mentally retarded. Testing showed he ranked in the lowest one percentile in intelligence. Finally, the trial court did make a finding that defendant had no ability to pay attorney fees.
While we could remand for a determination of defendant's ability to pay (see Pacheco, supra, 187 Cal.App.4th at pp. 1403-1404), on the record before us, as set forth above, it appears that judicial economy would be better served by reversing the costs of probation and domestic violence fee.
IV. DISPOSITION
The fee for the domestic violence fund and the order to pay costs of probation supervision are reversed. The probation order is modified to eliminate any requirement that defendant pay the court security fee and conviction assessment fee as conditions of probation; however, the trial court's order that defendant pay such costs and fees is affirmed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.