Opinion
E070346
09-09-2019
THE PEOPLE, Plaintiff and Respondent, v. EBONY PATRICE FLEWELLEN, Defendant and Appellant.
Marilee Marshall, under appointment of 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, and Eric A. Swenson and Yvette M. Martinez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1704209) OPINION APPEAL from the Superior Court of Riverside County. Godofredo (O.G.) Magno, Judge. Affirmed with directions. Marilee Marshall, under appointment of 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, and Eric A. Swenson and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Ebony Patrice Flewellen, was convicted by a jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), making criminal threats (Pen. Code, § 422), trespass (Pen. Code, § 602, subd. (o)), and false identification to a police officer (Pen. Code, § 148.9, subd. (a)). In a bifurcated proceeding, defendant admitted to being convicted of a prior serious felony and prior strike offense pursuant to Penal Code section 667. The trial court imposed a sentence totaling 10 years four months in state prison, as well as a court operation assessment (Pen. Code, § 1465.8, subd. (a)(1)), a booking fee (Gov. Code, § 29550), a criminal conviction assessment (Gov. Code, § 70373), and a restitution fine (Pen. Code, § 1202.4, subd. (b)).
On appeal, defendant contends (1) the trial court's refusal to instruct the jury on self-defense violated her constitutional rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; (2) the trial court's imposition of various fees and assessments violated her constitutional right to due process pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157; and (3) her sentencing should be remanded to permit the trial court to exercise its discretion to strike her five-year enhancement pursuant to recent amendments made to Penal Code sections 667 and 1385. We remand the matter for resentencing pursuant to amended sections 667 and 1385. In all other respects, we affirm the judgment.
Unless otherwise noted, all undesignated statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL HISTORY
A. Incident and Charges
On October 26, 2017, defendant was involved in an altercation with M.G. The incident occurred after defendant was discovered on M.G.'s property and refused to leave. After a verbal exchange, defendant struck M.G. with a metal pole and a physical fight between the two ensued.
On December 1, 2017, defendant was charged in an information with one count of assault with a deadly weapon (count 1; § 245, subd. (a)(1)), one count of making criminal threats (count 2; § 422), one count of trespass (count 3; § 602, subd. (o)), and one count of false identification to a police officer (count 4; § 148.9, subd. (a)). The information further alleged that defendant had a serious felony prior (§ 667, subd. (a)) and strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The matter was tried before a jury. The only witnesses called to testify at trial were M.G., the sheriff's deputy who arrested defendant, and a private investigator hired by the defendant. B. Trial Testimony
M.G. testified that she manages a residential complex consisting of about 20 homes. She lives in one of the homes with her husband and four children. On October 26, 2017, M.G. was getting her children ready for school when she heard a verbal confrontation between her husband and a woman outside the front door of their home. She heard her husband say "what are you doing in my window?" and heard a woman yell "I'm not fucking going anywhere" in response. M.G. went outside and observed her husband on their porch and defendant standing in the front yard about five feet from the house. M.G. testified that defendant was yelling and cursing while waving around clothes hangers and an old metal trampoline pole. Defendant threatened to return to vandalize the property or harm M.G.'s children.
M.G. and her husband repeatedly requested that defendant leave their property. When defendant refused to leave, M.G. approached defendant yelling for defendant to leave. As M.G. approached, defendant threw clothes hangers at M.G. and struck M.G. with the metal pole. When defendant attempted to swing the metal pole at M.G. a second time, M.G. grabbed the pole and a physical fight ensued. Eventually, M.G. and her husband were able to drive defendant off their property and M.G. then called the police.
The deputy who arrested defendant was also called to testify. On the morning of October 26, 2017, he was employed as a deputy sheriff with the Riverside County Sheriff's Department and dispatched to respond to a report of a woman brandishing a stick and knife. When the deputy arrived at M.G.'s residence, he was provided a description of defendant, and eventually located defendant outside of a nearby supermarket. When asked, defendant identified herself as "Tiffany Jones," with a birth date of March 20, 1989. Defendant was detained and eventually arrested after the deputy confirmed defendant was involved in the altercation at M.G.'s residence. However, defendant continued to identify herself as "Tiffany Jones" and the deputy was unable to determine defendant's true name until she was booked at the police station.
Defendant's private investigator testified as a rebuttal witness. The investigator testified that he had interviewed M.G. prior to trial. During that interview, M.G. admitted to being stressed and on medication at the time of the altercation due to the recent death of M.G.'s father. The investigator further reported that M.G. admitted both she and her husband were yelling at defendant prior to the altercation; that M.G. had used profanity towards defendant; that M.G. had exited her home to confront defendant; and that M.G. hit and kicked defendant after M.G. attempted to grab the metal pole from defendant's hands.
Defendant requested the trial court to instruct the jury pursuant to CALCRIM No. 3470 and the optional language in CALCRIM No. 875 related to self-defense. The trial court denied both of these requests.
CALCRIM No. 875's instructions for assault with a deadly weapon includes an optional bracketed element requiring the jury to find that the defendant did not act in self-defense to be used in conjunction with self-defense instructions.
The jury found defendant guilty of each charged offense. In a bifurcated proceeding, defendant admitted to being convicted of a prior serious felony and prior strike offense pursuant to Penal Code section 667. Defendant was sentenced to the low term of four years for count 1; one year four months for count 2, to run consecutively with count 1; the maximum term of 180 days for count 3, to run concurrently with count 1; and the maximum term of 180 days for count 4, to run concurrently with count 1. The trial court imposed a five-year enhancement under Penal Code section 667, for a total sentence of 10 years four months in state prison. The trial court also imposed a court operation assessment in the amount of $160 (Pen. Code, § 1465.8, subd. (a)(1)), a booking fee in the amount of $514.58 (Gov. Code, § 29550), a criminal conviction assessment in the amount of $120 (Gov. Code, § 70373), and a restitution fine in the amount of $300 (Pen. Code, § 1202.4, subd. (b)). Defendant timely appealed.
III. DISCUSSION
A. Self-defense Instructions Were Not Warranted
Defendant contends the trial court's refusal to instruct on self-defense violated her constitutional rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. We disagree.
"'"A trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense."'" (People v. Manriquez (2005) 37 Cal.4th 547, 581; see also Delo v. Lashley (1993) 507 U.S. 272, 275 ["[W]e never have suggested that the Constitution requires a state trial court to instruct the jury on mitigating circumstances in the absence of any supporting evidence."].) The trial court "'has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence' . . . [and] 'is not obliged to instruct on theories that have no evidentiary support.'" (People v. Larsen (2012) 205 Cal.App.4th 810, 823.) "Substantial evidence in this context '"is 'evidence sufficient "to deserve consideration by the jury," not "whenever any evidence is presented, no matter how weak."'"'" (Ibid.) The trial court's decision to refuse a requested instruction is reviewed de novo. (People v. Manriquez, supra, at p. 584; People v. Simon (2016) 1 Cal.5th 98, 132-133.)
"'To justify an act of self-defense for [an assault charge . . .], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. . . .' The threat of bodily injury must be imminent [citation], and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.'" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) "In other words, the defendant's belief must both subjectively exist and be objectively reasonable." (People v. Brady (2018) 22 Cal.App.5th 1008, 1014.) Thus, we review the record to determine whether there was substantial evidence from which a jury could infer that defendant had a subjective belief she was about to suffer imminent bodily harm at the time she struck M.G. with the pole and conclude such belief was objectively reasonable. We find no such evidence in the record before us.
As an initial matter, there was no evidence of defendant's subjective belief. Defendant did not testify regarding any of her observations or impressions. "While it is true that substantial evidence of a defendant's state of mind may be found in the testimony of witnesses other than a defendant" (People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on other grounds in People v. French (2008) 43 Cal.4th 36, 48 fn. 5), no other witnesses provided any such testimony here. There was no testimony of statements, expressions or gestures by defendant which would indicate she was acting out of a subjective fear of imminent bodily harm.
More importantly, even assuming defendant held a subjective belief of imminent bodily harm, there was no evidence to suggest such belief would have been objectively reasonable under the circumstances. M.G. testified that immediately prior to being struck with the metal pole, she was approaching defendant yelling for defendant to leave. Defendant had already ignored multiple requests to leave M.G.'s property. While there was testimony that M.G. and her husband used profanity while yelling at defendant, there was no testimony to suggest either of them made any verbal statements or gestures threatening physical harm. Finally, while M.G. admitted to physically hitting or kicking defendant, she testified that she did so only after being struck first by defendant.
There was no testimony to suggest that M.G. carried any weapons, made any verbal threats of physical harm, made any gestures threatening physical harm, or made any actual attempt to inflict harm on defendant at any time prior to defendant's act of striking M.G. with a metal pole. Absent any such evidence, there was nothing upon which the jury could have relied to find a fear of imminent physical harm objectively reasonable. Our review of the record discloses no evidence—let alone substantial evidence—to support a self-defense instruction in this case and we find no error in the trial court's refusal to give the requested instructions. B. Any Error in Failing to Conduct an Ability to Pay Inquiry Was Harmless
Defendant also argues the trial court's imposition of various fees and assessments without first holding a hearing to determine her ability to pay violated her constitutional right to due process as declared in People v. Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, our colleagues in the Second District held that imposing assessments pursuant to Penal Code section 1465.8 and Government Code section 70373, as well as restitution fines under Penal Code section 1202.4 without first conducting a hearing to determine a defendant's ability to pay, violates due process. (People v. Dueñas, supra, at p. 1164.) In response, the People argue that Dueñas was wrongly decided because there is no fundamental liberty interest in avoiding government fines or assessments. We need not address this issue because we find that, even assuming Dueñas was rightly decided and the trial court erred by failing to conduct an ability to pay hearing, any such error was harmless and does not warrant reversal.
Error under Dueñas is not reversible per se, but instead subject to a harmless error analysis. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034-1035.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (People v. Jones, supra, at p. 1035; see Chapman v. California (1967) 386 U.S. 18, 24.)
Here, the monetary assessments and fines challenged in defendant's supplemental brief total $1,094.58. However, defendant was sentenced to a lengthy term of 10 years four months in state prison. Any inquiry into defendant's ability to pay the assessments and fines at issue would necessarily include consideration of her future earning capacity and specifically her ability to obtain prison wages during the course of her lengthy incarceration. (People v. Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 138-139.) Given the length of defendant's prison sentence, we have no doubt that defendant will have the ability to pay the assessments and fines at issue here. The suggestion that defendant will be unable to pay even if given the opportunity to earn prison wages for more than a decade has no merit and we conclude that any error under Dueñas was harmless. C. The Matter Should be Remanded for Reconsideration of Sentencing Issues
There is apparently some discrepancy regarding what assessments or fines are being challenged on appeal. The court's sentencing order, defendant's supplemental brief on this issue, and the People's supplemental respondent's brief each list a different set of monetary assessments and fines. We thus consider only those amounts identified in defendant's supplemental brief in arriving at this number, which consist of a $160 court operation assessment, a $514.58 booking fee, a $120 criminal conviction assessment, and a $300 restitution fine.
Finally, defendant contends her sentencing should be remanded to permit the trial court to exercise its discretion to strike her five-year enhancement pursuant to recent amendments made to sections 667 and 1385. The People concede that because defendant's conviction is not yet final, the amendments to sections 667 and 1385 embodied in Senate Bill No. 1393 (2017-2018 Reg. Sess.), which permit a trial court to exercise discretion to dismiss or strike a five-year consecutive term imposed for prior serious felony convictions, applies to defendant's case pursuant to People v. Garcia (2018) 28 Cal.App.5th 961. We agree and therefore remand the matter for resentencing under sections 667 and 1385 without expressing an opinion as to how the trial court should exercise its discretion. If the trial court chooses to exercise its discretion to strike the five-year enhancement, it may also conduct a hearing to determine defendant's ability to pay any fines or assessments in light of any reduced prison sentence.
IV. DISPOSITION
Defendant's sentence is vacated and the matter is remanded to allow the trial court to exercise its discretion to determine whether to strike defendant's five-year enhancement under sections 667 and 1385. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.