Opinion
E070884
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON JOSEPH DRAYER, Defendant and Appellant.
Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1700112) OPINION APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge. Affirmed as modified. Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Aaron Joseph Drayer of second degree murder and found true the allegation his intentional discharge of a firearm proximately caused the victim's death. The trial court initially sentenced him to 40 years to life in prison (15 years to life for the murder and 25 years to life for the gun enhancement), but after reconsidering the sentence on its own motion, the court struck the enhancement, which reduced his sentence to 15 years to life.
On appeal, Drayer argues his trial attorney rendered ineffective assistance by failing to request a new trial. He also argues the trial court committed three sentencing errors by (1) miscalculating his number of actual custody credits; (2) imposing a $10,000 restitution fine without considering his ability to pay; and (3) imposing a $40 court security fee and a $30 criminal conviction assessment without first holding an ability to pay hearing as required under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We agree Drayer is entitled to an additional 51 days of custody credits, but otherwise find his arguments without merit. With that modification to his sentence, we will affirm the judgment.
I
FACTS
The Riverside County District Attorney filed an information charging Drayer with murder (Pen. Code, § 187, subd. (a); unlabeled statutory citations refer to this code), with an enhancement for intentionally discharging a firearm, proximately causing the death of another (§§ 12022.53, subd. (d), 1192.7, subd. (c)). The jury heard the following evidence at trial.
A. Prosecution's Case
Doug, Drayer's close friend and business partner in selling drugs, testified as the prosecution's main witness to the shooting of the victim, Lilliana. Doug said that on January 14, 2017, he and Drayer spent the day gambling at casinos in the Palm Springs area and, at some point, met the victim's friend, a man named Angel. Late that night, Drayer and Doug decided to meet up with Angel in his hotel room to do, and possibly sell, drugs.
The pair arrived at the Royal Plaza Inn in Indio just after midnight. Angel and Lilliana met them in the parking lot and invited them to the room. Doug said that although the tone between the four of them was friendly, Drayer was nevertheless on alert. He parked his SUV where he could see it from the hotel room and spoke to Doug for several minutes before they went in. Drayer was concerned Angel and Lilliana could be gang members. He hid his gun, a long barrel .357 magnum revolver, in his waistband and gave Doug an expandable baton, explaining the weapons were "[j]ust in case anything went down." He also told Doug that if Angel and Lilliana had "enough for a lick, we might just take it," which Doug took to mean Drayer intended to rob them if they had enough money to make it worth the effort.
Inside the room were Angel, Lilliana, a man named Phillip, and a woman named Jessica. The group started doing methamphetamine and Drayer brought out his stash of drugs, which he kept in his "book safe," a hollowed-out dictionary with a lock. Doug said he and Drayer had a high tolerance for alcohol and methamphetamine because they were daily users.
According to Doug, at first the atmosphere was "friendly" and "cool." Because everyone was getting along, Doug believed Drayer had abandoned his plan to rob Angel and Lilliana. However, as late as 1:45 a.m., Drayer was sending text messages from his phone that suggest he was trying to recruit others to come to the hotel to rob the occupants.
Drayer texted one contact to come to the Royal Plaza in Indio, and when the contact asked, "What's over there?" Drayer responded, "These nobodies to hit. They're rich and waiting on someone to send $$."
As the evening wore on, however, Doug started to worry about Lilliana. She was acting drunk and obnoxious and was showing them photos on her phone of guns for sale. She began acting "cocky" about being in a gang and secretive about what she was doing on her phone. This made Doug start to worry that she was trying to recruit others to rob them. Although Lilliana had not actually threatened anyone, Doug suggested they leave, and Drayer agreed.
In the parking lot, Drayer realized he had left his book safe in the room. He doubled back to retrieve it, and Doug followed him. Drayer found the book safe on the floor and picked it up. Noticing it had been torn, he became "extremely angry" and demanded to know who was responsible. When no one came forward, he pulled out his gun and cocked it. He pointed it around the room and told Doug to pat everyone down for weapons. Doug searched Angel, Phillip, and Jessica and found no weapons, "money or anything" on them.
While this was happening, Lilliana was lying on the bed engrossed in her phone. Drayer pointed his gun at her and yelled, "get off your fucking phone." Lilliana replied, "I ain't hanging up shit. You ain't getting this phone." According to Doug, Drayer "took a step closer to her and pointed [his gun] straight at her." He told her, "[h]ang up the fucking phone now." Instead of complying with his order, Lilliana continued to scroll through her phone "like she was on Facebook or texting someone." Still lying on the bed with her head propped up against the headboard, Lilliana started to say something to Drayer, something that "seemed threatening." But before she could finish her sentence, Drayer shot her. She immediately went limp, and her body slid to the floor.
According to Doug, in the moments before Drayer shot her, Lilliana was simply scrolling through her phone. She was not calling anyone and did not make any movements toward Drayer.
The autopsy revealed Drayer's bullet had struck Lilliana in the neck at a downward trajectory, piercing her lung, and exiting from her midback. She died as a result of the gunshot, either instantaneously from neurogenic shock when the bullet hit her spinal cord or within a matter of minutes from blood filling her chest cavity.
Doug said that, after shooting Lilliana, Drayer ordered everyone to "get the fuck out of here" and threatened to shoot them all. Angel, Jessica, and Phillip fled in a panic. Drayer and Doug left as well, taking the gun with them.
Drayer drove to a deserted area and stopped near a copper mine. He gave the gun to Doug and told him to throw it out of the window (which Doug did). They spent the night hiding in a ravine and drove home the next morning. Doug said although Drayer seemed shocked and remorseful, Drayer never claimed it was an accident.
B. Drayer's Testimony
Aside from his description of the moments leading up to and including the shooting, Drayer's version of the events was largely consistent with Doug's. He agreed he and Doug had gone to the Royal Plaza Inn to do drugs with Angel and admitted he had given Doug an expandable baton and armed himself with a loaded gun before entering the hotel room. He disagreed, however, with Doug's interpretation of what he meant by doing "a lick" on the room's occupants. He said the phrase referred to selling drugs, not robbery.
A police officer familiar with street slang testified for the prosecution that the term "lick" most commonly referred to robbery. He said it was possible the term could also be used in a broader sense, as a reference to any "side hustle" to illegally obtain money.
Drayer agreed the mood was initially friendly and comfortable. He recalled that Lilliana had showed them photos of guns, but this did not worry him like it had Doug. Instead, the photos put him at ease because it meant his new acquaintances weren't undercover cops and he could feel comfortable sharing his stash of drugs with them.
According to Drayer, his problems with Lilliana began when he refused to give her any of the cocaine he was carrying in his book safe. He said he rarely used cocaine himself and was not prone to giving it away for free because it was a more expensive drug than methamphetamine. He said she became upset by his refusal and claimed she had a gang affiliation and could have him "fucked up" or killed. Drayer said these remarks neither struck him as "legitimate threat[s]" nor made him feel he was in any real danger.
However, his feelings changed when he noticed Lilliana was "mumbling and whispering into her cell phone." This behavior made him feel uncomfortable because she could have been calling others to come to the room and kill him. He raised these suspicions with Angel, who tried to reassure him nothing of the sort was happening, but the reassurances seemed "fishy" and only made Drayer more suspicious. In addition, Drayer believed Angel may have had a gun because Angel had said to him earlier that evening, "You show me yours, I'll show you mine." At this point, he and Doug conferred and decided it was best to leave.
A search of Lilliana's cell phone records showed she had not made or received any calls from midnight onwards.
Angel followed them to the parking lot and tried to convince them not to leave (more behavior Drayer found suspicious). When Drayer realized he had left his book safe inside the room, he debated whether to go back for it. He felt that, "[a]t any point in time, whoever [Lilliana] was calling, could have showed up." "I didn't want to actually go back in the room at this point in time, because I didn't want them to show up and me to be stuck right there in the—in the room." Despite these suspicions, he decided to retrieve his book safe, and Doug followed him.
As he reentered the room, he thought he heard someone say something like, "Hurry up and get here to get this fool." Then he saw his damaged book safe on the floor and bent over to pick it up. This is where Drayer's testimony diverges from Doug's. Drayer said that, as he was stooped over the book safe, he felt Angel directly behind him. Believing Angel was about to inflict "immediate harm," Drayer stood up and pulled out his gun because he didn't "want a gun pulled on [him] first." He cocked it (which made the trigger easier to pull), pointed it at Angel, and told him to back up. Angel moved to a corner of the room where Phillip and Jessica were. Drayer said he pointed the gun at them and told Doug to "shake everybody down" for weapons.
According to Drayer, what happened next happened quickly. Lilliana was not standing with the rest of the group; she was lying on the bed looking at her phone. Drayer ordered her to move, but she "gave [him] resistance" and told him she wasn't going to get up. He turned away from her to point the gun at the others and focus on Doug's search. However, he noticed in his peripheral vision that Lilliana was starting to move. "And I just saw, because she was directly to my left, I just kind of saw her—I guess it would be like a—a flail . . . I don't know exactly what she was doing, [maybe] she was throwing her phone at me or if she was quickly going towards her purse." Drayer said that as he turned to look at Lilliana to see what she was doing, the gun accidentally fired.
Drayer believed he must have "flinched," because he hadn't meant to pull the trigger. On cross-examination, he said what had caught his attention was that Lilliana was screaming "pretty much at the top of her lungs" when she flailed, but he admitted having no idea what she was saying.
C. Verdict and Sentencing
On March 5, 2018, the jury convicted Drayer of second degree murder and found the gun allegation true. On May 10, 2018, the trial court sentenced him to an indeterminate term of 15 years to life for the murder conviction and an indeterminate term 25 years to life for the firearm enhancement, for a total of 40 years to life in prison. The court imposed a restitution fine of $10,000, as well as a court security fee of $40 and a criminal conviction assessment of $30. In deciding whether to impose the (discretionary) enhancement, the trial court reasoned that Drayer's refusal to admit he had thought about robbing the occupants of the hotel room—when the evidence indicated otherwise—suggested he had been dishonest on the witness stand and therefore counseled in favor of imposing the enhancement.
However, a few days later, the court on its own motion decided to reconsider its imposition of the enhancement. The court told the parties it wanted to revisit the issue because the sentence for the enhancement was significant and it didn't think it had reviewed the record thoroughly enough. In the ensuing weeks, the court reviewed the trial transcripts, and the parties briefed the propriety of imposing the enhancement.
On June 29, 2018, the court held a second sentencing hearing and decided to strike the enhancement. The court gave the following reasons to support its ruling: (1) the evidence tended to show that Drayer brought his gun to the hotel room not for offensive purposes but for protection; (2) the evidence tended to show that both Drayer and Doug felt uncomfortable and unsafe in the hotel room, which is why they initially decided to leave; (3) the evidence also tended to show that Drayer drew his gun out of "some subjective fear on [his] part"—that is, he felt Angel come up behind him and believed he had a gun; (4) Drayer's young age (he was 22 at the time) and difficult background; (5) the lack of any prior violent crimes on his record; (6) he appeared to feel remorse for his actions; and (7) striking the enhancement would not affect the ultimate penalty, as he was still subject to a maximum sentence of life in prison.
The court left the rest of the judgment in place. Drayer filed a timely appeal.
II
ANALYSIS
A. Ineffective Assistance Claim
At the second sentencing hearing, the trial court made the following comments in the course of explaining why it would reverse its prior ruling and strike the enhancement: (1) "[T]he defense did not file any motion for a new trial, for reasons I don't know why. I don't know why he didn't do that. But when I am evaluating the evidence concerning Mr. Drayer's guilt or innocence, I don't mean [only] to the substantive charges, but also on the gun use. I'm not sure that as the, quote, '13th juror' I would have been able to reject Mr. Drayer's testimony regarding at least a subjective fear as motivating his actions that evening"; and (2) "[U]nder all those circumstances, pointing the firearm or—or his producing the firearm, it [would have] been difficult for me, as I said, as a 13th juror, to reject at this particular point some subjective fear on the part of Mr. Drayer. And that fear alone . . . could have easily supported, I think, a substantially reduced verdict." (Italics added.)
Based on these comments, Drayer argues his attorney rendered ineffective assistance by failing to move for a new trial or request a modified judgment under section 1181. We disagree. The court's comments were off-the-cuff and preliminary; they were not the product of applying the relevant legal standards to the trial evidence. Contrary to the court's initial impression, a defendant's subjective fear does not support reducing second degree murder to manslaughter when that fear is not based on a belief that serious bodily harm is imminent, and as we will explain, the record contains no evidence Drayer believed he was at risk of imminent harm in the moments before he shot Lilliana. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey) ["for either perfect or imperfect self-defense, the fear must be of imminent harm"].) And as we will also explain, the record contains no other basis to support reducing Drayer's conviction to manslaughter—voluntary or involuntary. Had defense counsel moved for a new trial, we do not doubt the trial court—having had the benefit of reviewing the record under the relevant legal standards—would have reached the same conclusion and denied the motion.
1. Section 1181
Section 1181 permits a defendant to move for a new trial "[w]hen the verdict or finding is contrary to law or evidence." (§ 1181, subd. (6).) Alternatively, where "the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of . . . a lesser crime included therein," the statute authorizes the trial court to "modify the verdict, finding or judgment accordingly without granting or ordering a new trial." (Ibid.) But a modification is not warranted simply because the jury could have found the defendant guilty of a lesser offense. Rather, modification is appropriate "only where the evidence shows defendant to be not guilty of the offense of which he was found guilty." (People v. Baca (1966) 247 Cal.App.2d 487, 497, italics added.)
"Since the amendment of section 1181 of the Penal Code in 1927 trial courts and reviewing courts are authorized to modify the judgment and fix a lesser degree of the crime in those instances where on an appraisal of all the evidence there is found to be lacking any substantial evidence of the elements required to constitute the degree of the crime as fixed by the jury." (People v. Tubby (1949) 34 Cal.2d 72, 76.) The purpose of modification under section 1181 "is to obviate the necessity of a new trial where the court believes there is sufficient evidence to establish the lesser offense but not the greater." (People v. McClellan (1980) 107 Cal.App.3d 297, 302, italics added.)
In reviewing a section 1181 motion, "the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court 'should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.'" (People v. Davis (1995) 10 Cal.4th 463, 523-524.)
2. Ineffective assistance of counsel
To establish a claim of ineffective assistance, Drayer must show his attorney's performance "fell below an objective standard of reasonableness" and he was prejudiced by the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692; accord, People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) It is well settled that counsel does not perform deficiently or prejudice the trial outcome by failing to raise a claim that is meritless. (See People v. Washington (2017) 15 Cal.App.5th 19, 26 ["the decision not to make a meritless request is neither deficient performance nor prejudicial"]; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147 ["Competent counsel is not required to make all conceivable motions"].) We will therefore reject Drayer's claim of ineffective assistance if the record demonstrates a request for new trial or reduced verdict would have been groundless. (E.g., People v. Padilla (1995) 11 Cal.4th 891, 961 [failure to seek new trial was not ineffective where record demonstrates defendant would not likely have succeeded on such a motion]; People v. Cudjo (1993) 6 Cal.4th 585, 637 [same]; People v. Thurman (2007) 157 Cal.App.4th 36, 48 [failure to seek new trial was not ineffective assistance where defendant could point to no "issues which could have been successfully raised in the new trial motion"], italics added.)
3. The record does not support a reduction to manslaughter
Drayer argues his attorney's failure to request a new trial was prejudicial because it is reasonably probable the trial court would have reduced his conviction to either voluntary or involuntary manslaughter. Except for belatedly in his reply brief, Drayer makes no attempt to explain how the trial evidence supports a reduced verdict. Rather, he relies solely on the trial court's comments during the second sentencing hearing—comments to the effect that it might have granted a new trial motion based on the evidence of Drayer's subjective fear. Drayer argues these comments are direct evidence the court would have granted a section 1181 motion and, as a result, his counsel's deficiency was prejudicial.
We disagree. As we noted above, the comments were preliminary and made without the benefit of briefing on the relevant legal standards. On this record, a section 1181 motion would have been groundless, as there is no evidence to support either lesser crime. In other words, entitlement to relief is based not on the trial court's preliminary assessment of the record, but on application of the law to the trial evidence.
Undertaking that analysis now, we explain why Drayer's claim of ineffective assistance fails. "Voluntary and involuntary manslaughter are lesser included offenses of murder." (People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas).) Murder and manslaughter are both the unlawful (that is, neither justified nor excused) killing of a human being. The difference between the two crimes is malice, which murder requires and manslaughter does not. In its express form, malice is an intention to kill. In its implied form, it manifests as an awareness of the danger of one's actions and a conscious disregard for life. (People v. Rios (2000) 23 Cal.4th 450, 460.)
This is not a case where there is sufficient evidence to establish Drayer committed the lesser offense of voluntary or involuntary manslaughter but insufficient evidence to establish he committed the greater offense of second degree murder. Rather, the jury's verdict finds support in both law and the record. Doug—Drayer's good friend and an eyewitness to the shooting—testified that Drayer pulled his gun out of "extreme[]" anger (not fear), gave Lilliana orders, and when she didn't obey them, took a step closer to her, pointed the gun "straight" at her, and shot her. This testimony supports a second degree murder conviction. It is sufficient evidence that Drayer acted with malice, and there can be no reduction to manslaughter when the defendant acted with malice.
The fundamental problem with Drayer's argument is that even if we credit (as the trial court did) his testimony that he felt subjective fear of Angel when he bent down to pick up his book safe, and even if we credit his testimony that the shooting was accidental, there is still no legal basis to reduce his conviction to manslaughter. This is because, under either version of the events (Drayer's or Doug's), Drayer acted with, at the very least, implied malice. Dealing drugs for a living, Drayer was not a novice when it came to firearms. He had owned the gun he shot Lilliana with for about two weeks and had used it "a few times" for target practice. At trial, he admitted that when he pulled the gun from his waistband that night, he intentionally cocked the hammer because it made the trigger more sensitive or easier to pull. Given this background, his acts of drawing a loaded gun in an enclosed space, cocking its hammer to give it a hair trigger, training it on multiple people while issuing orders, and then turning to face Lilliana so it was directed at her neck evince a level of recklessness that qualifies as a conscious disregard for life. (See People v. McNally (2015) 236 Cal.App.4th 1419, 1425-1426 [concluding that because "brandishing a loaded firearm at a person is an act dangerous to human life," a person "acts with implied malice when he is under the influence of alcohol and/or drugs, engages in joking or horseplay with a firearm, and causes the discharge of the firearm killing another person"]; see also People v. Boatman (2013) 221 Cal.App.4th 1253, 1263 ["pointing a loaded gun at someone and pulling the hammer back is an intentional act, the natural consequences of which are dangerous to human life, and that defendant deliberately did so" supports a finding of implied malice], italics added.) In other words, even if we believed everything Drayer said on the stand, his own version of the events supports a finding that he acted with implied malice.
To further explain, we take voluntary and involuntary manslaughter in turn and explain why the record does not support a reduction of Drayer's conviction to either offense. Voluntary manslaughter is an unlawful killing that occurs "upon a sudden quarrel or heat of passion." (§ 192.) It requires the killer's reason to have been '"actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an '"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."'" (Thomas, supra, 53 Cal.4th at p. 813.) Not just any provocation will suffice. "[It] must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation . . . must be affirmatively demonstrated." (Ibid.)
Here, the evidence is insufficient to support a finding that Lilliana sufficiently provoked Drayer. Because Drayer claims he shot her accidentally as he was turning to see why she was screaming and flailing, the only evidence of provocation came from the other eyewitness to the killing, Doug. According to him, Drayer shot Lilliana because she refused to obey his order to get off her phone. That conduct is so minor no reasonable juror could consider it sufficient provocation. Indeed, courts consider conduct much more offensive than Lilliana's to be insufficient provocation as a matter of law. (E.g., Thomas, supra, 53 Cal.4th at p. 813 [where victim resisted the defendant by talking back and trying to wrestle the gun from his hands, the court held that "'[s]uch predictable conduct by a resisting victim' is not the type of provocation that reduces a murder charge to voluntary manslaughter"]; People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [evidence that the victim approached the defendant, "'started offending him,'" calling him "'a mother fucker,'" and daring him to use his gun was insufficient provocation].) And, to the extent the record supports the inference that Drayer thought it was Lilliana who had damaged his book safe, '"[h]eat of passion may not be based upon revenge."' (People v. Williams (1995) 40 Cal.App.4th 446, 453.)
The record also does not support a voluntary manslaughter conviction based on imperfect self-defense, which occurs when the defendant's fear of imminent harm is real but not reasonable. Crucially, like self-defense, imperfect self-defense requires the fear be of imminent harm (Humphrey, supra, 13 Cal.4th at p. 1082), and the two things Drayer said he feared—(1) that Lilliana was calling people to come to the hotel room and harm him and (2) that Angel was going to harm him as he was bent over picking up his book safe—were not imminent when he pulled the trigger. Any danger Angel might have posed had passed when Drayer took control of the situation by pulling out his gun. Any danger posed by others coming to the room was also not imminent, because, by the time Drayer had pulled out his gun, no one had arrived. (Id. ["Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice"].)
The evidence is similarly insufficient to support a reduction to involuntary manslaughter. That offense occurs when a person kills another while they are committing either (1) a non-felony crime or (2) an ordinarily lawful act that might produce death, in either an unlawful way or "without due caution and circumspection." (§ 192.) In his reply brief, Drayer argues the trial court could have concluded his gun went off accidentally while he was engaged in the misdemeanor of brandishing a weapon in violation of section 417, thereby entitling him to a reduction to involuntary manslaughter. Though we typically do not consider arguments made for the first time in a reply brief because of the unfairness to the other party, we will consider this argument because the People had the foresight to brief why the record does not support any type of manslaughter conviction (even though Drayer failed to address the issue in his opening brief).
Drayer's claim that the record supports involuntary manslaughter based on misdemeanor brandishing a weapon fails for two reasons. First, when the weapon brandished is a loaded firearm (as it was here), the offense is a wobbler, which means it is not necessarily a misdemeanor—the trial court can classify it as a felony. (§ 417, subd. (b).)
Section 417, subdivision (b) applies to "[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center [or youth facility]." (Italics added.) Arguably, this provision applies to two crimes in the disjunctive—(1) drawing a loaded gun in a threatening manner (which Drayer did here) and (2) using a loaded gun in any manner during an argument or fight at a day care center. At oral argument, Drayer's counsel claimed this provision is inapplicable because our colleagues in Division Three have concluded its plain language is ambiguous and therefore have limited its application "to instances where the proscribed offense is committed on the grounds of a day care center or other youth facility." (People v. Rivera (2003) 114 Cal.App.4th 872, 878.) Thus, counsel argued, Drayer's brandishing was not a wobbler but a misdemeanor under section 417, subdivision (a)(2).
We need not weigh in on the interpretation of section 417, subdivision (b) because it has no bearing on the outcome of this case. Whether or not Drayer's act of pointing a loaded and cocked gun at Lilliana and ordering her to get off her phone could satisfy the elements of some misdemeanor crimes is beside the point. His conduct could also clearly satisfy the elements of some felony crimes, such as assault with a deadly weapon under section 245, subdivision (a)(2). In other words, he cannot show that when he shot Lilliana he was engaged in a misdemeanor only, and not also a felony. As a result, he cannot satisfy his burden of demonstrating a reasonable probability the trial court would reduce his murder conviction to manslaughter.
Second, even if we assume Drayer were committing a misdemeanor only when he pointed his gun at Lilliana and the other occupants of the hotel room, and even if we assume he pulled the trigger accidentally, "[a]n unintentional shooting resulting from the brandishing of a weapon" is nevertheless murder "if the jury concludes that the act was dangerous to human life and the defendant acted in conscious disregard of life." (Thomas, supra, 53 Cal.4th at pp. 814-815.) As we explained above, the evidence amply supports a finding that Drayer exhibited a conscious disregard for human life when he pulled out a loaded gun, cocked it, and aimed it at several people.
In sum, Drayer cannot demonstrate his attorney rendered ineffective assistance because any section 1181 motion the attorney would have filed would have been meritless.
Drayer argues his attorney's failure to file a section 1181 motion was "part of a pattern of deficient performance," which includes the failure to make certain objections during the prosecutor's closing argument and the failure to "seriously try to persuade the judge to strike the [gun] enhancement." We do not address these alleged deficiencies because Drayer has made no argument that they caused him prejudice or constitute ineffective assistance.
B. The Restitution Fine
The trial court imposed a restitution fine of $10,000, the statutory maximum under section 1202.4. Drayer argues this was an abuse of discretion because the court did not consider whether he would be able to pay that amount. We conclude Drayer has forfeited this argument by failing to raise it with the trial court. And, because he cannot demonstrate he was prejudiced by that failure, we also reject his claim of ineffective assistance of counsel.
A defendant who does not object to the imposition of the maximum restitution fine forfeits the right to challenge the fine on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; see also People v. Trujillo (2015) 60 Cal.4th 850, 858 [challenges to presentence report fee forfeited if not raised first in trial court]; People v. McCullough (2013) 56 Cal.4th 589, 591 [same holding in the context of booking fees].) Drayer seeks to avoid the forfeiture rule by arguing his counsel did not have a meaningful opportunity to object. He claims the trial court "may have implied to the parties that [it] had already made its sentencing decision" when it stated it was imposing a $10,000 restitution fine. (Italics added.) Accepting this argument would eviscerate the forfeiture rule. "[A] meaningful opportunity to object means that the defendant be given the opportunity to address the court on the matter of sentence"—as in, at a sentencing hearing, like the one held here. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [being present when the court pronounces the sentence qualifies as a meaningful opportunity to object, unless the court affirmatively prevents the defendant from objecting].) The time to object to the amount of the restitution fine was precisely when the court announced its intention to impose it. In fact, Drayer had not one but two opportunities to object to the fine—at the first sentencing hearing and at the end of the second hearing, after the court struck his firearm enhancement and announced its intention to keep the remainder of his sentence the same. (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033 ["On two separate occasions, Gutierrez had the statutory right to request that the court consider his ability to pay in setting the restitution fine, but he did not do so. His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas"].)
The forfeiture analysis is different when the trial court imposes the minimum restitution fine of $300. Before Dueñas, an objection to the minimum fine based on inability to pay would have been futile because section 1202.4 expressly prohibits trial courts from considering ability to pay when imposing the minimum restitution fee. (E.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1032 (Jones).) However, because the statute permits trial courts to consider a defendant's ability to pay "in increasing the amount of the restitution fine in excess of the minimum fine" (§ 1202.4, subd. (c)), it is the case that "even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Thus, in cases like this one, which involve restitution fines higher than the minimum amount of $300, any objection to the defendant's ability to pay is forfeited if not first raised in the trial court. --------
As to whether his attorney's failure to object constitutes ineffective assistance, the answer is no. To establish a claim of ineffective assistance on a record silent as to why his attorney did not object, Drayer must show his attorney's performance was objectively deficient and that "there simply could be no satisfactory explanation" for not objecting. (People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.) Drayer cannot make that showing here, because we can conceive of a reason why his attorney did not object. Drayer is young, healthy, and appears to have access to some financial assets, while at the same time having no debt. These considerations, plus the fact he will be serving a life sentence during which he will be required to work and earn wages, allow us to hypothesize that his attorney did not object to the fine because he had determined Drayer could pay it with some mix of financial assets and future wages.
Pointing to evidence that he was unemployed at the time of the sentencing hearing, had a "difficult upbringing," and was living with a friend and borrowing her car, Drayer argues the record suggested he was poor. We do not draw the same inference. According to evidence in the record, Drayer was an active drug dealer who had $300-worth of methamphetamine and cocaine with him on the night of the murder, owned a cell phone and a gun, and had spent the day gambling in casinos with $400 in disposable funds. This suggests he had access to at least some money and makes us view his poverty argument with some skepticism. Additionally, Drayer told probation that his last legal employment was with an insulation company, where he earned $1,000 a week for two years (from 2014 to 2016). He reported having no outstanding debt and no housing or car payments.
Also important, Drayer's ability to pay includes "[his] ability to obtain prison wages and to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376.) Drayer was 22 years old at the time of sentencing. He is six feet tall and weighs 195 pounds. The only limitation noted in his probation report is that he is unable to move one of the fingers on his left hand, but he does not argue that limitation would prevent him from earning wages in the future.
Drayer will spend at least 15 years in prison, where he will be required to work. (Pen. Code, § 2700 ["every able-bodied prisoner" must work while imprisoned].) Prison wages range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Assuming he will earn a middle-tier salary of $34, in 15 years he will have earned $6,120. At that point, he will be eligible for parole and, depending on the outcome of that decision, he will either continue to remain incarcerated and earn prison wages or be able to seek employment outside the prison system to satisfy the balance of the fine.
In addition, it is conceivable Drayer's attorney decided not to object to the restitution fine for reasons unrelated to his ability to pay. A defendant's inability to pay is just one among many factors the court should consider in setting the restitution fine above the minimum. The court should also consider "the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime." (§ 1202.4, subd. (d).) Drayer's attorney may have concluded that, given the seriousness of his offenses and the psychological harm to the victim's family, any objection to the maximum fine would have been fruitless.
Based on Drayer's age, health, current financial situation, future earning capacity, and the seriousness of his crime, we conclude his trial attorney's failure to object to the restitution fine does not qualify as an objective deficiency.
C. Other Fees—Dueñas Error
In addition to the $10,000 restitution fine, the trial court imposed a $40 court security fee and a $30 criminal conviction assessment. Drayer argues the court violated his due process rights as articulated in Dueñas by imposing these amounts without considering his ability to pay. Even if we assume the court erred under Dueñas, we would conclude the error was harmless beyond a reasonable doubt. (See Jones, supra, 36 Cal.App.5th at p. 1035 [Dueñas error was harmless because the record demonstrated the defendant who was sentenced to state prison for a term of six years would earn sufficient prison wages to pay his fines and assessments of $370].) As discussed above, Drayer is young, healthy, and has a lengthy prison sentence ahead of him. We recognize that "[a]n inmate's assignment to a paid position is a privilege dependent on available funding, job performance, seniority and conduct" (Cal. Code Regs., tit. 15, § 3040, subd. (k)), but because Drayer is so young and has been sentenced to an indeterminate term, we are comfortable concluding beyond a reasonable doubt that he will either hold a paid position long enough to satisfy his financial obligation or be able to pay the balance of his debt with money he will earn after his release.
D. Custody Credits
Drayer argues, and the People correctly concede, that he is entitled to an additional 51 days of actual custody credits for the period that he was incarcerated between his original sentencing hearing (on May 10, 2018) and the gun enhancement hearing (on June 29, 2018). (See People v. Buckhalter (2001) 26 Cal.4th 20, 23-24 [a defendant is entitled to actual custody credits for time served between original sentencing and resentencing].) "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
III
DISPOSITION
We correct Drayer's sentence to award him 51 additional days of custody credits, but in all other respects, we affirm the judgment. The trial court shall prepare a corrected abstract of judgment showing the modified award of custody credits and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation and correct the sentencing minute order.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
Acting P.J. We concur: FIELDS
J. MENETREZ
J.