Opinion
D074130
06-07-2019
THE PEOPLE, Plaintiff and Respondent, v. ASTRAILIA DUNFORD, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD274849) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed with directions. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Astrailia Dunford of arson of property (Pen. Code, § 451, subd. (d)), vandalism (§ 594, subd. (b)(2)(A)), and resisting a peace officer (§ 148, subd. (a)(1)). The trial court sentenced Dunford to a term of three years in prison. It suspended execution of that sentence, however, and granted formal probation.
Further statutory references are to the Penal Code unless otherwise specified.
Dunford appeals. She contends (1) the evidence does not support her arson conviction; (2) a probation condition requiring her to submit to warrantless searches of her "computers," "recordable media," and "electronic devices" is unconstitutionally overbroad; and (3) the trial court erred by imposing several fines and fees without considering her ability to pay them. We disagree with the first contention and conclude she forfeited the second by failing to object in the trial court. As to the third, we conclude Dunford forfeited her contention, at least in part, and any remaining error was harmless beyond a reasonable doubt. We therefore affirm the judgment. On remand, however, the trial court should prepare an amended order granting probation that conforms to its oral pronouncement of judgment, as discussed below.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On December 13, 2017, employees at a hotel in San Diego noticed five-foot-high flames in an area where fallen palm fronds had been stored. Dunford was standing next to the flames, holding a cigarette and a butane lighter. She was laughing and singing. An employee grabbed a fire extinguisher and put out the fire. The flames damaged a nearby chair and table.
A hotel manager escorted Dunford from the hotel grounds. The manager took a picture of Dunford because she suspected her of starting the fire. After Dunford left the hotel, she walked across the street and tried to climb a light pole. She then bent down, and it looked to the manager like Dunford was trying to light something on fire. Dunford walked a few more paces and bent down again to light a cardboard box. The manager called police.
Police officers arrived, arrested Dunford, and placed her in their police car. Dunford was uncooperative, and she appeared intoxicated. As they drove to a police station, Dunford slipped out of her handcuffs and began pulling the paneling off the doors of the police car. The officers had to use pepper spray twice to subdue her. After they arrived at the station, Dunford continued to resist.
An arson investigator viewed the scene, spoke with hotel employees, and reviewed witness statements. While tracing Dunford's steps, the investigator found a cardboard box with a burned corner where Dunford had bent down after leaving the hotel. After excluding other possibilities, the investigator concluded that the palm fronds and the cardboard box had been intentionally set on fire, by the same person.
DISCUSSION
I
Sufficiency of the Evidence
Dunford contends the evidence does not support her arson conviction. " 'In reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.] ' "[O]ur role on appeal is a limited one." [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence.' " (In re V.V. (2011) 51 Cal.4th 1020, 1026 (V.V.).) " '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." ' " ' " (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
Arson is defined by statute: "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property." (§ 451.) Dunford's contention on appeal appears to revolve around the terms "willfully" and "maliciously" as used in the statute.
" '[T]he terms "willful" or "willfully," when applied in a penal statute, require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act's prohibited character.' [Citation.] 'Willfully implies no evil intent; " 'it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.' [Citation.]" ' [Citations.] The use of the word 'willfully' in a penal statute usually defines a general criminal intent, absent other statutory language that requires 'an intent to do a further act or achieve a future consequence.' " (People v. Atkins (2001) 25 Cal.4th 76, 85 (Atkins).)
" 'Maliciously' imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (§ 450, subd. (e).) "In determining whether the second type of malice ('intent to do a wrongful act') is established for arson, malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right." (V.V., supra, 51 Cal.4th at p. 1028.)
"[A]rson's 'willful and malice requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire; " 'in short, a fire of incendiary origin.' " [Citations.] "Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state." [Citation.] Thus, there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.' " (V.V., supra, 51 Cal.4th at p. 1029; see Mason v. Superior Court (2015) 242 Cal.App.4th 773, 785 ["A necessary consequence is not required."].)
Viewing the evidence in the light most favorable to the prosecution, as we must, we conclude the jury could reasonably find that Dunford intentionally set fire to the palm fronds under circumstances that would directly lead to the burning of property. Dunford was the only person near the origin of the fire, and she was holding a butane lighter. Her reaction to the fire was to laugh and sing. The palm fronds were stacked near other property, so it was apparent that setting them on fire would lead to the burning of that property. After Dunford was escorted off the hotel's grounds, she continued to try to light various items on fire, including a cardboard box that subsequently showed signs of burning. Moreover, an arson investigator concluded that the palm frond fire was intentionally set by the same person that set the cardboard box on fire, i.e., Dunford. The evidence supports Dunford's arson conviction. (See V.V., supra, 51 Cal.4th at p. 1031; People v. Solis (2001) 90 Cal.App.4th 1002, 1010-1011.)
Dunford argues that she could not have set the fire intentionally because she was intoxicated and unaware of the risk of the fire. She claims the evidence shows only that she acted recklessly, not intentionally. We disagree. "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition." (§ 29.4.) Evidence of voluntary intoxication is therefore inadmissible on the issue of whether Dunford possessed the required general intent to burn the palm fronds. (See Atkins, supra, 25 Cal.4th at p. 79.) Whether Dunford was aware of the risk of fire is likewise irrelevant. Arson defendants are "not required to know or be subjectively aware that the fire would be the probable consequence of their acts." (V.V., supra, 51 Cal.4th at p. 1030.) The issue for the jury was whether Dunford intentionally committed the act of setting the palm fronds on fire, or whether she accidentally did so. Dunford's reaction to the fire, as well as her continued efforts to set other fires, amply supports the jury's conclusion that Dunford acted intentionally.
Relying on In re Stonewall F. (1989) 208 Cal.App.3d 1054, Dunford claims that "[t]he end goal of arson must be the willful and malicious burning of property." But Stonewall F. was disapproved by the Supreme Court on exactly this point. (Atkins, supra, 25 Cal.4th at p. 90, fn. 5.) The Supreme Court explained that arson does not require proof of such an "end goal"; it requires only "a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property." (Id. at p. 89; accord, V.V., supra, 51 Cal.4th at p. 1029.) The jury could reasonably find that standard satisfied by the evidence here.
II
Electronic Search Condition
Dunford further contends that the electronic search condition imposed by the court as a condition of her formal probation is unconstitutionally overbroad. The condition requires Dunford to "[s]ubmit [her] person, vehicle, residence, property, personal effects, computers, and recordable media [and] electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [the probation officer] or law enforcement officer." Issues related to the legality of electronic search conditions are currently pending before the Supreme Court. (See People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650 (Trujillo); In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.)
"A probation condition cannot be unconstitutionally overbroad. 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' " (People v. Arevalo (2018) 19 Cal.App.5th 652, 656-657.)
Dunford did not object to her electronic search condition in the trial court. "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.).) This rule "applies in the context of sentencing as in other areas of criminal law." (Id. at p. 881.) And it applies to constitutional defects in conditions of probation, unless the circumstances " 'present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Id. at p. 889.)
Dunford claims the electronic search condition is overbroad on its face and therefore her contention on appeal presents a pure question of law that can be resolved without reference to her sentencing record. But she does not actually pursue such a facial challenge. She does not argue the electronic search condition could never be constitutionally applied to her, i.e., there is no reasonable set of facts under which the condition would be constitutional. Indeed, courts have approved similar electronic search conditions under circumstances that could potentially be applicable here. (See, e.g., Trujillo, supra, 15 Cal.App.5th at pp. 588-589, review granted [defendant abused alcohol and required intensive supervision]; In re J.E. (2016) 1 Cal.App.5th 795, 805-806, review granted Oct. 12, 2016, S236628.) Dunford has not shown the electronic search condition is facially unconstitutional.
Dunford points to specific aspects of the record that allegedly show the condition is overbroad. For example, she argues, "There was no evidence of any use of computers, cell phones, or any other recordable media related to this offense." She also argues, without support, that her computers and recordable media (including cell phones) contain vast amounts of intimate and personal data. She attempts to distinguish her criminal history from prior opinions where a history of criminality has been found to support similar electronic search conditions.
Dunford's actual argument is that the electronic search condition is unconstitutionally overbroad as applied to her, under the circumstances of this case. This argument is an as-applied challenge, not a facial challenge. (See In re R.S. (2017) 11 Cal.App.5th 239, 247, review granted July 26, 2017, S242387.) As such, it was forfeited by Dunford's failure to object in the trial court. (See ibid.; see also Sheena K., supra, 40 Cal.4th at p. 889; People v. Smith (2017) 8 Cal.App.5th 977, 987.) We note that the trial court retains the power to modify Dunford's conditions of probation if circumstances warrant. (§ 1203.3, subd. (a); see Trujillo, supra, 15 Cal.App.5th at p. 589, review granted.) We express no opinion whether an electronic search condition is warranted in this case.
In her opening brief, Dunford mentions that the electronic search condition might be unconstitutionally vague and might violate her right against self-incrimination. Dunford does not present any argument or authority in support of those claims. We therefore need not consider them. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Gallardo (2017) 18 Cal.App.5th 51, 69, fn. 11.)
III
Ability to Pay Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Dunford contends the trial court erred by imposing a restitution fine and several fees without considering her ability to pay them. At sentencing, the trial court imposed a $900 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court operations assessment (id., § 1465.8), a $30 court facilities assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (id., § 29550.1). The court also imposed and stayed a $900 probation revocation fine. (Pen. Code, § 1202.45.) Although the court's subsequent written order granting formal probation altered these amounts, the court's oral pronouncement of judgment controls over the subsequent written order. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 (Zackery).)
Dunford did not object to the restitution fine or the fees, and she did not request an ability to pay hearing in the trial court. She told a probation officer she was a high school graduate and obtained an associate degree in English. At the time of the offense, she was living in an apartment secured by a homeless outreach organization. Before that, she had been homeless for approximately 10 years. Dunford had worked in the past as a waitress, a sales representative, and an office manager. She was last employed in 2005. She received $197 per month in food stamps. She had no monthly bills.
Dunford agreed to participate in a mental health and substance abuse program as a condition of probation. The court ordered Dunford to pay $35 per month towards her restitution fine and fees, beginning 60 days after her release from the program.
The court operations assessment, court facilities assessment, and criminal justice administration fee are required by statute to be imposed on a defendant upon her conviction. (Pen. Code, § 1465.8; Gov. Code, §§ 29550.1, 70373.) These statutes do not provide for any exception based on a defendant's ability to pay. (Ibid.) The restitution fine must be imposed upon conviction as well, unless the court finds a compelling and extraordinary reason for not imposing the fine. (Pen. Code, § 1202.4, subd. (c).) The trial court has discretion to set the restitution fine in any amount between the statutory minimum of $300 and the statutory maximum of $10,000. (Id., § 1202.4, subd. (b)(1).) A defendant's inability to pay does not qualify as an extraordinary and compelling reason not to impose a restitution fine, but the court must consider ability to pay if it imposes a fine above the statutory minimum. (Id., § 1202.4, subds. (c)-(d).)
Dueñas examined the effects of imposing fines and fees on defendants who lack the financial ability to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court determined that such defendants face significant negative consequences, even if the fines and fees are enforced only as civil judgments. (Ibid.) Under these circumstances, Dueñas observed, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) It also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Attorney General argues, as an initial matter, that Dunford has forfeited her claim of error under Dueñas because she failed to object or request an ability to pay hearing in the trial court. We agree, at least in part. Because a trial court must consider a defendant's ability to pay before imposing a restitution fine beyond the statutory minimum, our Supreme Court has held that a defendant who fails to object to such a fine forfeits any argument on appeal based on inability to pay. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Avila (2009) 46 Cal.4th 680, 729.) This analysis is unaffected by Dueñas. (People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5 (Johnson); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen).) Because Dunford failed to object to the restitution fine based on her alleged inability to pay, she has forfeited her contention that the court erred by failing to consider it.
Dunford claims that section 1202.4, subdivision (g) precluded the trial court from considering her ability to pay the restitution fine. But that subdivision relates to victim restitution orders, not restitution fines, so it has no relevance here. (See People v. Draut (1999) 73 Cal.App.4th 577, 582; see also People v. Holman (2013) 214 Cal.App.4th 1438, 1451-1452.)
The statutes imposing the court operations assessment, court facilities assessment, and criminal justice administration fee do not contain a similar requirement that the trial court consider a defendant's ability to pay. The opinion of the court in Dueñas that these fees should be conditioned on a defendant's ability to pay was arguably unforeseeable, thus excusing Dunford's failure to object. (See People v. Rangel (2016) 62 Cal.4th 1192, 1217 ["[T]he relevant question is whether requiring defense counsel to raise an objection ' " 'would place an unreasonable burden on defendants to anticipate unforeseen changes in the law.' " ' "].) The Courts of Appeal are currently divided on this question. (Compare Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155 [finding forfeiture] and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same] with Johnson, supra, 35 Cal.App.5th at pp. 137-138 [declining to find forfeiture] and People v. Castellano (2019) 33 Cal.App.5th 485, 489 [same].)
We need not join this debate. Even assuming Dunford may challenge the court operations assessment, court facilities assessment, and criminal justice administration fee for the first time on appeal, and further assuming the trial court was required to consider Dunford's ability to pay these fees before imposing them, we conclude any error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; Johnson, supra, 35 Cal.App.5th at pp. 139-140.) The fees at issue total $224. The trial court impliedly found that Dunford had the ability to pay the much larger $900 restitution fine. Dunford did not even contest the issue. And the court's finding was well-founded. Dunford has a high school diploma and an associate degree in English. Although she had not worked in the recent past, she has employment experience. Prior to the offense, Dunford received $197 per month in food stamps and had no monthly bills. Based on this record, any reasonable court would still have imposed the fees even if it had separately considered Dunford's ability to pay these fees under Dueñas.
Dunford repeatedly asserts she is "indigent," but she does not ground her assertion in any facts in the record. Nor does she explain how or why she would be unable to pay these fees. " '[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783.) Unlike in Dueñas, Dunford provides no indication the $224 at issue will saddle her with "anything like the inescapable, government-imposed debt-trap" faced by the defendant in that case. (See Johnson, supra, 35 Cal.App.5th at p. 139.)
Lastly, although we affirm the judgment, we will direct the trial court to prepare an amended order granting probation (and related minute order) reflecting the correct fine and fee amounts discussed above. (See Zackery, supra, 147 Cal.App.4th at pp. 387-389.)
In her supplemental reply brief, for the first time, Dunford argues that imposing the restitution fine and fees without a determination of her ability to pay violates the Eighth Amendment's prohibition on excessive fines under Timbs v. Indiana (2019) ___ U.S. ___ .) Timbs was decided before Dunford filed her supplemental opening brief. Although she referenced Timbs and its holding in that brief, she did not assert any argument based on the Eighth Amendment. "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.) Dunford has provided no reason why this argument could not have been raised in her supplemental opening brief. We therefore decline to address Dunford's argument based on the Eighth Amendment.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended order granting probation (and related minute order) setting forth the correct restitution fine, court operations assessment, court facilities assessment, and criminal justice administration fee imposed at the sentencing hearing.
GUERRERO, J. I CONCUR: DATO, J. BENKE, J., concurring in part.
I would find that Dunford has forfeited her right to raise the propriety of the $40 court operations assessment (Pen. Code, § 1465.8), the $30 court facilities assessment (Gov. Code, § 70373), and the $154 criminal justice administration fee (id., § 29550.1). I do so on the ground that she forfeited an Eighth Amendment right to raise the matter and make a proper showing of inability to pay such fees at the time of sentencing. (See People v. Gutierrez (June 4, 2019, D073103) ___ Cal.App.5th ___ [2019 D.A.R. 4868, 4879-4882, concur. opn.].) I also agree with the majority opinion that Dunford forfeited her statutory right to object to the restitution fine. (Pen. Code, § 1202.4, subds. (b) & (c).) In all other respects I concur with the majority.
BENKE, Acting P. J.