Opinion
D074855
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL M. FIERRO, Defendant and Appellant.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General of California, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel, Deputy Attorney General, Collette Cavalier and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 277118) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General of California, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel, Deputy Attorney General, Collette Cavalier and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Manuel Fierro guilty of resisting an executive officer by force (Pen. Code, § 69, count 1) and felony possession of a firearm (§ 29800, subd. (a)(1), count 2.) The court imposed a prison sentence of five years four months.
Statutory references are to the Penal Code unless otherwise specified.
On appeal, Fierro asserts insufficient evidence supported the jury's finding that Fierro possessed a firearm. Fierro also contends his conviction must be reversed because the court failed to give a unanimity instruction sua sponte in connection with count 1. Lastly, Fierro contends the court-imposed restitution fine, fees, and assessments violate his due process rights and therefore, these fees and fines should be stricken or stayed.
We reject these challenges and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
The events underlying Fierro's convictions occurred over the span of two to four minutes.
On June 1, 2018, San Diego Police Department Officers Jonathan Contreras and Joshua Clabough, on patrol, saw a car with no front license plate, a Vehicle Code violation. As they followed the car, it pulled over to the side of the road without any direction to do so. The driver, later identified as Fierro, opened the trunk from the interior of the car, stepped out of the car, and holding his phone to his ear walked past the car toward Contreras. Contreras was concerned because he had not instructed Fierro to approach him. Noting that Fierro had a large knife in a sheath on his hip, Contreras became increasingly concerned for his safety.
As Fierro approached, Contreras asked him for his identification. Fierro did not comply and asked why. Contreras twice asked Fierro to put his phone down on the hood of the patrol car. Fierro did not comply with either request and continued to hold his phone to his ear. Contreras asked Fierro to place his hands behind his back. Again, Fierro asked why. Contreras responded that it was because Fierro had a large knife and Contreras needed to take it off him. Fierro moved his hand toward the car as though he were about to place his phone on the hood, but then pulled his hand back. Clabough approached Fierro and attempted to place Fierro's arms behind his back. Fierro pulled away from Clabough and tried to run away. Clabough caught him and attempted to apply a carotid restraint. Fierro continued to struggle and Clabough was unable to correctly apply the carotid technique. Clabough told Fierro, "stop resisting."
Contreras tried to take Fierro to the ground but was unable to get hold of Fierro because Fierro kicked his hands away. Fierro continued to struggle with Clabough, pushing Clabough closer to the car. Clabough repeatedly told Fierro to stop resisting, but Fierro continued to struggle, flail, and try to run. Fierro pushed Clabough to the car and Clabough fell backward into the car's trunk with his feet off the ground. Fierro continued to struggle with Clabough as Contreras tried to pull Fierro off Clabough.
During the struggle, Contreras heard Clabough say Fierro was grabbing Clabough's gun. Contreras became concerned Fierro could reach for Clabough's gun or the knife Fierro was wearing. Contreras punched Fierro's body to get Fierro off Clabough and Clabough hit Fierro on his face. Contreras was able to get Fierro off Clabough and attempted a carotid restraint. Fierro said, "okay, okay," and stopped resisting for a moment. Contreras released some pressure off the carotid restraint.
When Clabough climbed out of the trunk, Fierro immediately turned, pushed Contreras away, and ran to the driver's side of the car. Fierro opened the car's driver's side door and was able to get one leg into the car, even as Contreras attempted to stop him.
As backup arrived, Contreras pulled Fierro to the ground. The backup officers then assisted in getting Fierro under control. Fierro however continued to flail and struggle even though officers gave repeated commands and delivered physical strikes. Finally, officers placed Fierro in handcuffs.
Officers found a flare gun in Fierro's car and two gun barrels in Fierro's sweatshirt's front pocket. The barrels fit into the flare gun.
At trial, criminalist Lisa Wilson testified that when she attached the barrels to the flare gun and tested the flare gun, the device was an operable firearm. She also testified the flare gun was capable of firing either a 12-gauge shot or a .45-caliber round. The flare gun itself consisted of the frame or receiver to which the barrels would attach. No tools were necessary to make the flare gun into a firearm.
Fierro stipulated to having been convicted of a felony prior to June 1, 2018. B. Defense Case
At trial, Fierro did not testify and did not present any evidence. Defense counsel elicited testimony from Wilson that this case was her first encounter with barrel inserts and a flare gun. Further, Wilson was not aware that when the barrels were attached to the flare gun it became an operable firearm until she tested the device.
DISCUSSION
I.
Sufficient Evidence of Possession of a Firearm
Fierro does not dispute he possessed a flare gun and the barrels. Instead, Fierro contends the flare gun and barrels, when unassembled, do not meet the statutory definition of firearm, and therefore there is insufficient evidence to support his conviction.
Fierro's argument relies on the criminalist's expert testimony and the court's statement outside the presence of jurors regarding the barrels being located separately from the firearm, "which everybody acknowledges is not a firearm." A. Legal Standard
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding . . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
Any person who has been convicted of a felony "and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." (§ 29800, subd. (a)(1).) "Firearm" is defined as "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (§ 16520, subd. (a).)
As used in section 29800, " 'firearm' includes the frame or receiver of the weapon." (§ 16520, subd. (b)(15).) Possession of a frame or receiver is therefore sufficient to constitute possession of a "firearm," regardless of whether a "device" with a "barrel" is also possessed. (People v. Arnold (2006) 145 Cal.App.4th 1408, 1414.) A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. (People v. Hamilton (1998) 61 Cal.App.4th 149, 153-154; People v. Azevedo (1984) 161 Cal.App.3d 235, 240, disapproved on other grounds in People v King (2006) 38 Cal.4th 617, 625 ["The People need not prove the shotgun is operable [citation] or even assembled and ready for immediate use"].) The jurors were instructed with the correct law. It was a question of fact for the jury to decide whether a flare gun was designed to be used as a weapon. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) B. Analysis
A firearm includes the frame or receiver of the weapon. (§ 16520, subd. (b)(15).) Fierro relies on Wilson's testimony to support his argument that there was no evidence establishing the flare gun and barrels are a firearm. He notes that Wilson testified that when the tubes and flare gun were separated, the flare gun did not constitute a firearm. This is not legally correct. As we have noted, a " 'firearm' includes the frame or receiver of the weapon." (Ibid.)
Fierro also argues that although he possessed a flare gun and barrels, the pieces did not constitute a firearm because the barrels were not inserted into the flare gun. Fierro contends the court's statement "this is a very weird case with these barrels located completely separate from where the flare gun is, which everybody acknowledges is not a firearm" supports this contention. Whether the flare gun and barrels constituted a firearm was a question of fact for the jury to determine, as the jury resolves conflicts and inconsistencies. (People v. Young, supra, 34 Cal.4th at p. 1181.) Moreover, the court's statement was made during sidebar and outside the presence of the jury. The statement was not heard nor considered by the jury. It was neither evidence nor a ruling.
Although the jury could have concluded that Fierro's flare gun was not a firearm based on Wilson's testimony, it was not required to do so. It is not this court's role to reweigh the evidence. (Albillar, supra, 51 Cal.4th at p. 60; People v. Zamudio (2008) 43 Cal.4th 327, 357.) Fierro's possession of the frame was sufficient evidence for the jury to determine that he was in possession of a firearm. (§ 16520, subd. (a).) The jury had a reasonable basis, based on substantial evidence to find Fierro's flare gun and barrels were designed to be used as a weapon that expelled projectiles through a barrel by force of explosion or other combustion.
II.
Unanimity Instruction
Fierro claims the court made an instructional error because it did not provide an unanimity instruction for count 1, resisting an executive officer. A. Background
The court instructed jurors that to prove defendant guilty of resisting an executive officer, the People must prove that the defendant used force or violence to resist Clabough, an executive officer, while Clabough was performing his lawful duty, and when Fierro acted, he knew the executive officer was performing his duty. The court instructed jurors regarding when an arrest or detention is unlawful and when force is unreasonable or excessive. Jurors were also instructed that a lesser included offense of count 1 was resisting, obstructing, or delaying a peace officer in the performance or attempted performance of his duty in violation of section 148, subdivision (a). B. Legal Standards
A criminal defendant has a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16.) "As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).)
However, "no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time' [citation]. Also, there is no need for an unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Jennings, supra, 50 Cal.4th at p. 679.)
"[A]ssertions of instructional error are reviewed de novo." (People v. Shaw (2002) 97 Cal.App.4th 833, 838.) Whether or not the trial court should have given a "particular instruction in any particular case entails the resolution of a mixed question of law and fact," which is "predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.) "As such, it should be examined without deference." (Ibid.) C. Analysis
The unanimity instruction was not necessary because the multiple acts forming the basis for the charge of resisting by force were so closely related in time that they formed a single transaction. (See People v. Williams (2013) 56 Cal.4th 630, 682; Jennings, supra, 50 Cal.4th at p. 679; People v. Riel (2000) 22 Cal.4th 1153, 1199-2000.) Also, no unanimity instruction was needed because Fierro "offer[ed] the same defense or defenses to the various acts constituting the charged crime." (Jennings, at p. 679.)
The record reflects there was no evidence of a break in Fierro's resistance from which jurors could distinguish between Fierro's acts. The struggle occurred very quickly, all in two to four minutes. Fierro continued to resist officers from the point of initial contact until Fierro was subdued on the ground.
Fierro argues the court has a duty to give a unanimity instruction sua sponte, relying on People v. Russo (2001) 25 Cal.4th 1124, 1128 (Russo). However, Russo does not help Fierro. The Supreme Court stated that an unanimity instruction is required when there are two discrete crimes, but not when there are multiple theories supporting the commission of a single crime. (Id. at pp. 1132-1133.) In Russo there was a single conspiracy. The court held it was not necessary for the jury to unanimously agree which of several overt acts the defendant committed. Similarly, here, there was a single crime of resisting an officer. The jury did not need to unanimously agree which of two acts constituted resistance.
Fierro's primary defense to count 1 was self-defense, claiming the officers engaged in excessive force. The only evidence on which the jury could determine whether officers engaged in excessive force was the officers' testimony. During trial, jurors were able to assess the officers' demeanor and credibility as they described Fierro's acts. The jury clearly rejected Fierro's primary defense as was its right as the trier of fact. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [noting failure to give unanimity instruction was harmless where jury rejected the defendant's single defense to all instances of firearm possession].) Any possible error was harmless because the jury rejected his defense to each separate step of his resistance.
The instruction on the lesser included offense included a unanimity instruction. This was not necessary, but did not cause harm to Fierro. Like resisting an executive officer, there was a continuous course of resisting a peace officer. Fierro committed a single act and provided a single defense. The unanimity instruction in conjunction with resisting a peace officer was not likely to be confused, and there was no error because there was one continuous course of conduct to which Fierro presented a single defense.
Jurors were instructed that a lesser included offense of count 1, resisting an executive officer, is resisting, obstructing, or delaying a peace officer in the performance or attempted performance of his duties in violation of section 148, subdivision (a). The jury was further instructed that "the defendant resisted, or obstructed, or delayed . . . Clabough by doing the following: pulling out of his grasp, running into and through him, shoving him into the trunk of the Honda Civic, running from the trunk of the Honda Civic towards the driver door of the Honda Civic, trying to enter the Honda Civic, and refusing to give up his hands once on the ground. You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed."
III.
Fines, Fees, And Assessments
A. Additional Background
Fierro's sentencing hearing took place on September 28, 2018. The court imposed a restitution fine in the amount of $3,900 under section 1202.4, subdivision (b) as recommended by the probation department. Additionally, the court imposed an $80 court operations assessment (§ 1465.8), a $60 court facilities assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550).
Fierro argues that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided after his sentencing, that the fines, fees, and assessments are unconstitutional because the court did not consider Fierro's present ability to pay. Fierro concedes he did not raise this issue at sentencing, but he argues he did not forfeit his claim because any objection would have been futile under existing law at the time. B. Fierro Forfeited his Dueñas Related-Claim
Fierro contends that although he failed to object to his court-imposed fines, he is nevertheless entitled to appellate review. Fierro relies on People v. Castellano (2019) 33 Cal.App.5th 485, 489 to support his position that the court should not apply the forfeiture doctrine. In Castellano, the defendant also failed to object but obtained relief based on his claim that he could not have anticipated the Dueñas holding.
However, Fierro's argument fails because prior to Dueñas, section 1202.4, subdivision (c) "expressly permitted" a defendant to challenge imposition of a restitution fine above the statutory minimum of $300, based on inability to pay. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033.)
"The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (§ 1202.4 (c))
Here, the court imposed a restitution fine in the amount of $3,900, which was significantly higher than the $300 statutory minimum. (§ 1202.4, subd. (b)(1).) As such, Fierro had a statutory right to object to the court-imposed fine because it was above the statutory minimum. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen).) Rather than exercise his statutory right, Fierro remained silent.
Fierro did not inform the court regarding an inability to pay the court-imposed fines and fees during his sentencing hearing. "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (Frandsen, supra, 33 Cal.App.5th at p. 1154.) Had Fierro objected, a factual determination would have been required to address his alleged inability to pay. Therefore, Fierro's objection would not have been futile.
We conclude Fierro forfeited his challenge to the restitution fine. Because Fierro's restitution fine amount was so much higher than the other assessments, Fierro forfeited his right to now contest those assessment fees on the claim he had no ability to pay them. If Fierro chose not to object to the $3,900 restitution fine based on inability to pay, he surely would not complain on similar grounds regarding an additional $294 in fees (i.e., $80 + $60 + $154). (See Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
We do not address Fierro's Dueñas argument because when he failed to raise an ability-to-pay argument at trial, he forfeited his right to object to his fines, fees, and assessments.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.