Opinion
A154016
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16NF003723-A)
Defendant Mario Garcia appeals from a judgment after a jury found him guilty of multiple counts of assault, attempted criminal threats, and possession of an assault weapon. He contends: (1) the trial court abused its discretion in denying his motion to relieve his attorney and appoint new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (2) the court abused its discretion in admitting evidence under Evidence Code section 1101, subdivision (b); (3) the court wrongly punished defendant for exercising his right to a jury trial; (4) the court wrongly failed to stay punishment under Penal Code section 654 ; (5) he is entitled to additional custody credit; (6) the court improperly imposed fines, fees, and assessments without determining his ability to pay them; (7) the court erred in failing to instruct the jury regarding the consequences of an officer's use of excessive force; and (8) the court erred in failing to instruct on a lesser included offense. We conclude that section 654 proscribes multiple punishment for both counts 4 and 5, and that the court must award defendant additional conduct credit. Otherwise, we affirm.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief summary of some of the trial evidence, which we set out to provide context to the claims raised on appeal.
Defendant intermittently lived with Gloria, Socorro, Socorro's partner, Miguelito, and their children. Defendant slept on the couch in the living room and did not regularly contribute financially, which was an issue for Miguelito.
Pursuant to the California Rules of Court, rule 8.90, governing "Privacy in Opinions," we refer to victims and witnesses who are related to defendant's family by their first names only. We initially refer to the law enforcement crime victims or alleged crime victims by their job titles, first names or first initials, and last initials. For the sake of brevity and clarity, subsequent references to these victims will use their titles and last initials.
One night, while defendant was sleeping, Miguelito arrived home from work and may have shut the front door metal gate or a baby gate loudly. Believing he heard defendant say something insulting, Miguelito verbally confronted defendant and a physical fight ensued. The fight lasted about five minutes. When asked how it began, Miguelito's only memory after verbally confronting defendant was that defendant had him in a headlock such that he struggled to breath and nearly blacked out. Toward the end of the altercation, the men briefly paused fighting, then defendant threw a 10 to 20 pound statue at Miguelito, striking him in the arm.
Both Socorro and Gloria tried to stop the fight to no avail. Eventually, Socorro—who had called the police and repeatedly told the men so—informed defendant and Miguelito the police were on their way, at which point defendant moved quickly towards the garage, where he kept a safe. Having heard defendant threaten to kill Miguelito, and not taking that threat lightly, Socorro quickly ushered Miguelito outside.
Around the time Miguelito and Socorro went outside, Corporal Ivan D. arrived in uniform with his patrol car lights on and his car parked directly in front of the home. Miguelito and Socorro indicated to Corporal D. that a man inside was retrieving a gun. Contemporaneously, through a window, Corporal D. could see a male moving quickly through the kitchen toward the garage then back toward the front door.
Corporal D. testified he saw defendant open the front door gate with a semiautomatic handgun in hand, and he saw defendant's gun rise until it was pointed at him. At this point, Corporal D. fired several rounds at defendant, stopping when defendant fell to the ground. Defendant was hit in the upper arm, shoulder and back area, and he retreated into the house. Eventually, Gloria opened the door and defendant crawled outside towards the police officers.
In an interview shortly after the incident, Miguelito gave an account that differed from Corporal D's. Miguelito said that he saw defendant walk out of the house with a gun pointed downward, defendant took about five steps then—around the same time he heard gunshots—he saw defendant walking back inside the house.
Paramedics took defendant to the hospital. In the ambulance, defendant was agitated and angry; he cursed at the paramedics and Officer K. S., who was accompanying him, calling the police "pigs," and saying things like, "they'll get theirs." At the hospital, defendant called Officer S. homosexual slurs, continued to refer to police officers as "pigs," and said to Officer S. and an investigator that he was "with El Chapo," his "familia [would] flood this town," "they'll get theirs," and "[y]ou're both dead." At the hospital, defendant had a blood alcohol content of 0.19 percent.
Back at the scene, officers found a trail of mostly unsmeared blood droplets leading from the front of the house to the corner of the garage where there was a gray safe. A substantial amount of blood was on that safe as well in front of it. A firearm magazine lay on the floor in the blood in front of the safe. Inside the safe, officers found a loaded gun with a live round chambered resting atop other gun boxes, and other firearms including an assault weapon with an extended magazine. Officers found only defendant's indicia in the safe. Defendant's DNA matched the blood on the safe's interior and exterior.
The information charged defendant with nine felony counts, as follows: assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2), count 1) plus firearm use enhancements (§§ 12022.53, subd. (b) and 12022.5, subds. (a) and (d)); exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8, count 2); assault with a semiautomatic firearm (§ 245, subd. (b), count 3); assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 4); assault with a deadly weapon (§ 245, subd. (a)(1), count 5); criminal threats (§ 422, subd. (a), counts 6 and 9); resisting an executive officer (§ 69, count 7); and possession of an assault weapon (§ 30605, subd. (a), count 8). The information named Corporal D. as the victim in counts 1 and 2, Miguelito as the victim in counts 3 through 6 and 9, and Officer S. as the victim in count 7. At trial, on motion of the prosecutor, the court dismissed count 9. The jury found defendant not guilty of counts 2 and 7 but found him guilty of count 1 and found the section 12022.53, subdivision (b) allegation true. The jury further found defendant guilty of counts 3, 4, 5, and 8, and guilty of the lesser included offense of attempted criminal threats (§§ 664/422) for count 6. The court sentenced defendant to a total of 24 years in prison. Defendant appealed.
DISCUSSION
A. Denial of Marsden motion
Defendant contends the trial court abused its discretion by failing to grant his Marsden motion to relieve his attorney, Mr. Allen, and appoint new counsel. He claims Mr. Allen made statements at the Marsden hearing indicating he did not familiarize himself with whether prior counsel or defendant filed Pitchess motions, competent counsel would have done so and investigated whether there was a basis for a Pitchess motion, and the court failed to adequately inquire whether Mr. Allen's failure to file a Pitchess motion constituted ineffective assistance. We conclude the court did not abuse its discretion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
1. Additional Facts
From the beginning of the case in April 2016 until May 2017, defendant was represented by appointed counsel who filed a Pitchess motion. Following the denial of a second Marsden motion against this attorney, the trial court granted defendant's request to represent himself. (Faretta v. California (1975) 422 U.S. 806.) During the brief time that he represented himself, defendant withdrew prior counsel's Pitchess motion and filed his own, which the court denied. Subsequently, defendant asked the court to re-appoint counsel, and a different attorney than the first—Mr. Allen—was assigned in August 2017 with trial scheduled for December 2017.
The court ultimately continued that trial date and heard pre-trial motions in January 2018. By the end of January 2018, about a week before the statutory period for bringing defendant to trial was set to expire, defendant made a Marsden motion. The next day, a judge other than the trial judge heard that motion. At the hearing, defendant indicated he made the motion due to his desire to hire private counsel. In response to whether he had any issues with Mr. Allen's competence, defendant said he did not, his only concern in that regard was that Mr. Allen had not filed a Pitchess motion. After Mr. Allen spoke to defendant's points, the court asked defendant: "you are not dissatisfied with the representation by Mr. Allen?" Defendant replied: "I'm very happy with his work, and it is just - I'm — I was already in the process of hiring this attorney when he came on, and it was —"
The trial court indicated it was not seeing any conflicts or ineffective assistance, and a Marsden motion was not the proper avenue for substituting in private counsel. Defendant then reiterated he and Mr. Allen disagreed about whether to file a Pitchess motion. The court asked Mr. Allen to respond to that. Mr. Allen had difficulty recalling whether a prior Pitchess motion was filed and its outcome, but he did relay that a Pitchess motion was previously "discussed" and "dismissed without prejudice." He explained he had not filed a Pitchess motion because a prior one had already been "discussed," and when he was assigned the case around September 2017, trial was set for December, so he was "brought in to do the trial" and in "trial prep mode." The court asked if Mr. Allen thought another Pitchess motion was warranted, and Mr. Allen indicated he would consider it, stating: "At this point, in an abundance of caution, if there were time to file one, for the sake of argument and to make it clean, . . . I wouldn't be opposed . . . to renew."
The trial court denied the Marsden motion, stating Marsden was not the proper vehicle for defendant to pursue his desire to hire his own attorney, and finding no breakdown in the relationship between defendant and Mr. Allen. The court made no explicit findings about the adequacy of Mr. Allen's representation vis-à-vis his failure to file a Pitchess motion. After the Marsden hearing, Mr. Allen never filed a Pitchess motion.
2. Analysis
"When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (People v. Taylor (2010) 48 Cal.4th 574, 599.) The fact that the defendant and his attorney differ on trial tactics is not necessarily a basis for substitution. (People v. Padilla (1995) 11 Cal.4th 891, 927.) "We review the denial of a Marsden motion for abuse of discretion. [Citation.] Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " (People v. Taylor, supra, at p. 599.) "When reviewing whether the trial court abused its discretion in denying a Marsden motion, we consider whether it made an adequate inquiry into the defendant's complaints." (People v. Mungia (2008) 44 Cal.4th 1101, 1128.)
Here, we conclude the trial court conducted an adequate inquiry. The court promptly provided defendant a hearing, gave him ample opportunity to voice his grounds for the motion, then asked Mr. Allen to respond to defendant's points. With regard to defendant's complaint that Mr. Allen failed to file a Pitchess motion, the court clearly was probing to ascertain whether such a motion was warranted and relented only after Mr. Allen indicated he would consider filing another Pitchess motion. As defendant acknowledges, this is not a case like those that he cites where the courts made no inquiry of counsel regarding the defendants' allegations. (See People v. Cruz (1978) 83 Cal.App.3d 308, 317; People v. Munoz (1974) 41 Cal.App.3d 62, 66; In re Miller (1973) 33 Cal.App.3d 1005, 1021; People v. Groce (1971) 18 Cal.App.3d 292, 296-297.) Defendant cites no analogous case law supporting the inquiry here was inadequate to protect defendant's right to effective assistance, especially given Mr. Allen's representation that he would consider filing another Pitchess motion, which could have rectified his dispute with defendant. Defendant claims any reliance on Mr. Allen's representation was unreasonable because Mr. Allen never promised he would actually file a Pitchess motion, but it is generally for counsel to control tactics (People v. Welch (1999) 20 Cal.4th 701, 728-729) and the issue before the court was whether counsel was providing adequate representation or whether ineffective assistance was likely due to an irreconcilable conflict. The court was entitled to rely on Mr. Allen's representation in making its determination. (See People v. Smith (1993) 6 Cal.4th 684, 696; People v. Webster (1991) 54 Cal.3d 411, 436.)
We also see no abuse of discretion in the trial court's denial of the motion. As alluded, whether to file a Pitchess motion is a matter of tactics. "Disagreement concerning tactics, by itself, is insufficient to compel discharge of counsel." (People v. Smith (2003) 30 Cal.4th 581, 606 (Smith).) To obtain substitute counsel, defendant had the burden of showing the failure to replace Mr. Allen would substantially impair his right to the assistance of counsel. (Id. at p. 604.) Considering the record of the Marsden hearing, defendant failed to carry that burden. Defendant never set out a theory of the case supporting a plausible factual foundation for discovery under Pitchess. (See People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) Further, when the court inquired of counsel whether a Pitchess motion was warranted, Mr. Allen indicated that he would consider filing one. Again, the court was entitled to rely on that representation, and given the apparently amicable relationship between defendant and Mr. Allen, the court could reasonably find, as it implicitly did, that defendant failed to establish that "a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (Smith, supra, 30 Cal.4th at p. 604.)
In sum, the trial court did not abuse its discretion in addressing and denying defendant's Marsden motion.
B. Evidence Code , Section 1101, Subdivision (b)
Next, defendant contends the trial court erred in admitting evidence under Evidence Code, sections 1101, subdivision (b) ("1101(b)") and 352. We find no error.
1. Additional Facts
Pursuant to Evidence Code section 1101(b), the trial court admitted evidence concerning the following four prior uncharged incidents, finding them probative of motive and intent.
In 1998, Sergeant Donald Olsen and his partner responded to a produce distribution center about defendant assaulting someone. Upon arriving, defendant cursed at the officers, said they had no right to be there, and "[t]here was no fucking problem." He resisted being handcuffed and refused to alight from the raised docking platform he was on. Instead, he sat and made himself deadweight, forcing the officers to carry him to the parking lot. He refused to answer basic booking questions and told Sergeant Olsen hostilely that he did not know who he was dealing with and that he "better recognize," which Sergeant Olsen perceived as attempted intimidation.
In 2001, Sergeant Michael Toscano responded to a dance hall about an argument and observed defendant standing a few feet from another officer, arguing. Defendant took a half-step towards the officer, like a lunge, then ran away. The officer indicated to Sergeant Toscano that defendant assaulted him and they chased him. When cornered, defendant refused orders to get down and instead assumed a combative stance and said, "Come on. Let's go." Meanwhile, 15 to 20 men who appeared combative advanced on the officers from behind. The crowd dispersed when more officers arrived. Defendant suffered a section 148 conviction due to the incident.
In 2005, Sergeant Toscano again encountered defendant while responding to a report of shots being fired near defendant's home. Upon arriving, Sergeant Toscano approached defendant and a woman to ask if they knew anything. Defendant walked away without acknowledging Sergeant Toscano. Before the woman could respond, defendant said, "You don't have to tell them shit and give me my phone back." When the woman held out defendant's phone, Sergeant Toscano took it, at which point defendant turned to Sergeant Toscano and assumed a combative stance. Sergeant Toscano took out his pepper spray, and defendant ran home. On his lawn, defendant turned and again took up a combative stance, while appearing to reach for something towards his side and back. Defendant ignored commands to get down, and ran inside his home while Sergeant Toscano pepper sprayed him and another officer hit him in the leg. At the front door, he assumed a combative stance, then closed the door on the officers, who had to repeatedly kick it open. Defendant suffered a section 148 conviction due to this incident.
In 2009, Officer Robby Chon responded to defendant's home regarding a report of a male and female in a loud verbal argument. Upon arriving, a female told the officers her mother and sister were arguing. Officer Chon could see defendant and another male inside. Officer Chon beckoned them out but they ignored him. The officers went in and defendant locked himself in the bathroom, refusing to talk for several minutes before exiting the bathroom and going to the front yard. When Officer Chon tried to talk with him, defendant responded belligerently, cursing and saying he hated South San Francisco police officers and "all South City cops were fags." Defendant told Officer Chon not to act tough just because his uniform said "SWAT" on it, that he had better watch out, and "Look what just happened in Oakland." Officer Chon—who knew four Oakland police officers were killed two weeks prior—felt threatened, asked defendant if he was referring to that particular killing and if he was threatening him. Only later did defendant say he was referring to a BART shooting.
2. Analysis
Character evidence is generally inadmissible to prove conduct on a specific occasion, but evidence that a defendant previously committed a crime, civil wrong, or other act is admissible if it tends to prove some fact material to the case, such as motive or intent. (§ 1101, subds. (a)-(b).) "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 (Ewoldt).) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' " (Id. at p. 402.)
Evidence of other bad acts is also admissible to prove motive: either the uncharged act supplies the motive for or is the cause of the charged crime, in which case no similarity between the charged and uncharged acts is required; or the uncharged act proves the existence of a motive for the charged acts, in which case the charged and uncharged acts must share common features. (People v. Spector (2011) 194 Cal.App.4th 1335, 1381; People v. Walker (2006) 139 Cal.App.4th 782, 804.) We review the admission of uncharged acts evidence for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)
Defendant contends the evidence was inadmissible to prove intent to commit assault with a firearm against Corporal D. (§ 245, subd. (d)(2), count 1) because he never displayed or attempted to use a firearm during the four prior incidents. He also contends the evidence was inadmissible to prove motive because there were insufficient similarities between count 1 and the uncharged acts, insofar as defendant did not assault an officer nor have a weapon during any of the prior incidents.
These arguments miss the mark. Defendant ignores that beyond charging him with assaulting Corporal D. with a semi-automatic firearm, the People also charged him with exhibiting a firearm to Corporal D. to resist arrest (§ 417.8), and attempting by threats or violence to deter Officer S. from performing his duty (§ 69). Section 417.8 requires proof of "intent to resist or prevent the arrest or detention of himself or another by a peace officer," and section 69 requires proof of intent to prevent or deter the executive officer from performing the officer's lawful duty. The trial court instructed that the jury could consider the uncharged acts evidence only for the limited purpose of deciding whether defendant had the intent to deter or prevent law enforcement officers from discharging their lawful responsibilities, or whether he had a motive to commit the charged offenses. Further, defendant put intent for the section 417.8 and section 69 counts at issue when he asked for (and obtained) a voluntary intoxication instruction, and argued the specific intent elements of the crimes were unsatisfied because of his intoxication.
More to the point, the uncharged acts evidence reflected that defendant had a long history of resisting arrest and threatening officers when confronted by them. Such evidence logically tended to show that, assuming defendant exhibited a firearm in Corporal D.'s presence when confronted by him, he did so with the intent to resist or prevent his arrest or detention. (See Ewoldt, supra, 7 Cal.4th at p. 406; see also People v. Stitely (2005) 35 Cal.4th 514, 532 [the degree of similarity required to prove mental state is far less exacting than that required to prove identity, "[t]he two acts need only be sufficiently similar to suggest that the defendant probably had the same intent each time"].) The uncharged acts evidence also tended to prove that when defendant told Officer S. at the hospital that he was with "El Chapo," that his "familia [would] flood this town," that "they'll get theirs," and that "[y]ou're both dead," he did so intending to deter the officer from performing his lawful duty.
The uncharged acts evidence was also probative on the issue of motive. Although defendant suggests otherwise because there were no similarities between the charged crimes and uncharged acts, "the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus." (People v. Demetrulias (2006) 39 Cal.4th 1, 15; see, e.g., People v. McCurdy (2014) 59 Cal.4th 1063, 1069-1070, 1097-1098 (McCurdy) [in a case where the defendant was charged with murdering and kidnapping a child for the purpose of committing a lewd act, evidence that defendant molested his sister as a child was admissible to show motive]; People v. Pertsoni (1985) 172 Cal.App.3d 369, 371-372, 374-375 [charged and uncharged acts, which were largely dissimilar in the circumstances of their commission, were sufficiently similar to prove motive merely because of the victims' "assumed affiliation with the Yugoslav government"].)
Here, the uncharged acts evidence demonstrated defendant had a long-standing animus against police officers. During all four uncharged incidents, as in the charged offenses, defendant physically and/or verbally threatened and tried to intimidate police officers when they confronted him. During the 1998 and 2009 incidents, as in the charged incidents, defendant cursed at the officers. During the 2009 incident, as in the charged incident, defendant referred to the police as "fags" or "faggots." During the 2001 incident, defendant stepped toward another officer in a lunging manner from a few feet away (i.e., he assaulted the officer) before running away. This evidence logically tended to prove that defendant committed the charged offenses against Corporal D. and Officer S., impelled by his animus against police officers. Such evidence also tended to disprove defendant's voluntary intoxication defense.
Finally, we reject defendant's claim the trial court should have excluded the prior acts evidence under Evidence Code section 352. " ' "Evidence is prejudicial within the meaning of Evidence Code section 352 if it ' "uniquely tends to evoke an emotional bias against a party as an individual" ' [citation] or if it would cause the jury to ' " 'prejudg[e]' a person or cause on the basis of extraneous factors" ' [citation]." [Citation.]' [Citation.] Generally, due to the potential undue prejudice inherent in uncharged offenses, evidence of their occurrence is admissible only if it has substantial probative value." (McCurdy, supra, 59 Cal.4th at p. 1098.)
Here, the uncharged acts evidence had substantial probative value as proof of the specific intents required for the section 417.8 and section 69 counts, and to counter the defense of voluntary intoxication. The evidence also had substantial probative value because it explained why defendant acted as he allegedly did, which would have otherwise been inexplicable aside from his intoxication. On the other side of the scale, the uncharged acts admitted here were not particularly inflammatory, and certainly not more inflammatory than the evidence regarding the charged offenses. (Ewoldt, supra, 7 Cal.4th at p. 405.) Moreover, the trial court eliminated any possibility of prejudice and jury confusion by instructing that the evidence was admissible only as proof of "intent to deter or prevent law enforcement from discharging their lawful responsibilities," or as proof of motive to commit the charged offenses, and by admonishing that the jury should not conclude from the evidence that defendant has a bad character or a propensity to commit crime. (People v. Williams (2018) 23 Cal.App.5th 396, 422.)
Defendant argues the uncharged acts evidence was inadmissible under section 352 because it was not relevant to any material fact in dispute with regard to the section 245, subdivision (d)(2), count involving Corporal D. But he fails to acknowledge or address its logical relevance to the counts alleging violations of section 417.8 (exhibiting a firearm to Corporal D. to resist arrest) and section 69 (attempting by threats or violence to deter Officer S. from performing his duty). Defendant's reliance on People v. Balcom (1994) 7 Cal.4th 414 is unpersuasive. In Balcom, the court held the trial court erroneously admitted an uncharged act because "if the jury found that defendant committed the act alleged, there could be no reasonable dispute that he harbored the requisite criminal intent." (Balcom, at p. 422.) The same cannot be said for the section 417.8 and section 69 offenses charged here.
For example, even if a reasonable juror believed that defendant initially appeared to Corporal D. at the door with a gun in hand or that he raised that gun towards Corporal D., the juror could believe he did these things because he was intoxicated and did not know a police officer was outside. Likewise, a reasonable juror could believe defendant was merely intoxicated and harbored no specific intent when speaking to Officer S. at the hospital.
In sum, the trial court did not err in admitting evidence of uncharged acts under Evidence Code section 1101(b) and section 352.
C. Exercise of the Right to a Jury Trial
Defendant contends the trial court imposed the maximum possible sentence for his convictions in order punish him for exercising his right to a jury trial. We find no error.
1. Additional Facts
At a hearing in early January 2018, before handling various pre-trial matters, the trial court urged defendant to consider the prosecutor's plea offer of seven years and eight months, noting the case involved defendant pointing a weapon at a peace officer, a crime which, the court opined, "jurors take . . . very seriously." The court also noted his maximum exposure for the charged offenses was around 26 years and, with his custody credit, defendant would have already served more than half of the seven year, eight month term offered. The court said, "if you decide to have a trial, that's fine. I'm not trying to talk you out of your right to a trial. But . . . [y]ou need to think about whether th[e] pragmatic call in this case is to take a certainty of a reasonable sentence versus the uncertainty what could happen if you get convicted of all the charges . . . ."
The next day, defendant declined the offer and the trial court said, "I have to say in 31-and-a-half years as a judge that's the profoundly worse decision I think I've heard a defendant make. Do you understand, sir, that you're being offered seven years, eight months for what you've served over half the time and that your maximum sentence can be 26 years?" The court urged defendant to reconsider, stating: "This is your opportunity, sir, to resolve this case in a way that's positive for you . . . . If you choose to reject the offer, that's fine, but it's not going to be coming back. . . . Once we start this trial with these motions that are going to start in 15 minutes then the offer is not going to be accepted by me and you're going to be looking at a full 26 years." After extra time to consider, defendant again declined, then the court said trial would proceed, the offers would not be renewed or accepted, and if convicted, defendant "is looking at the maximum sentence."
At sentencing, the trial court noted defendant's actions were senseless, he put the lives of his family and Corporal D. in danger, and the crime had a significant impact on Corporal D. The court further noted defendant was disrespectful towards Corporal D. when he was testifying—smirking, mumbling, and cursing at the officer—which indicated defendant's ongoing threat to public safety. The court also commented that defendant showed no remorse, showed no acceptance of responsibility, and showed his disregard for the court and its processes by, among other things, trying to manipulate Socorro into lying on the stand. The court then imposed the maximum sentence, a total of 24 years, as recommended by the prosecutor. More specifically, the court imposed the aggravated term of nine years for the section 245, subdivision (d)(2) count (count 1), stating it did so because the crime involved a threat of great bodily injury to numerous individuals. The court indicated it imposed the section 12022.53, subdivision (b) enhancement on count 1 based on defendant's lack of remorse and acceptance of responsibility. Finally, the court imposed one-third of the midterm sentences for all remaining counts, and ran the terms consecutive "for the reasons indicated before."
2. Analysis
Criminal defendants have a constitutional right to a jury trial. (In re Lewallen (1979) 23 Cal.3d 274, 278 (Lewallen).) It is a due process violation for a court to punish or treat a defendant more harshly because he or she exercises that right. (Id. at pp. 278-279.) Nonetheless, "under appropriate circumstances a defendant may receive a more severe sentence following trial than he would have received had he pleaded guilty; the trial itself may reveal more adverse information about him than was previously known." (Id. at p. 281.) "There must be some showing, properly before the appellate court, that the higher sentence was imposed as punishment for exercise of the right." (People v. Angus (1980) 114 Cal.App.3d 973, 990 (Angus).)
Here, defendant argues the trial court's aforementioned pre-trial comments, considered in conjunction with the fact that the court ultimately imposed the maximum sentence, demonstrate that the court punished him for exercising his jury trial right. We are unpersuaded. The court's comments certainly indicated its belief that defendant should take the plea offer given the nature of the case, defendant's maximum exposure, and the number of custody credits he already accumulated. But viewed in context, the comments were directed at informing defendant of the seriousness of his choice and its potential consequences. Contrary to defendant's assertion, the words used by the court permit no inference that the court would consider defendant's exercise of his jury trial right as a ground for imposing a harsher punishment. Indeed, the court made no suggestion at any point during the proceedings—either at pre-trial or trial, or at sentencing—that it would consider a harsher punishment in the event defendant demanded a jury trial. (Compare with Lewallen, supra, 23 Cal.3d at p. 277.)
Defendant points to the sentence imposed as supporting his claim that he was punished for exercising his jury trial right. But the mere fact that defendant received a more severe sentence after a jury verdict than he was offered during plea negotiations is not by itself evidence that the trial court punished defendant for exercising his right to a jury trial. (People v. Szeto (1981) 29 Cal.3d 20, 35.) The sentence imposed was the sentence the prosecutor recommended after trial, and there appears no indication the court relied on improper sentencing factors. (Angus, supra, 114 Cal.App.3d at pp. 989-990.) On this score, defendant acknowledges the court gave a proper reason for imposing the aggravated sentence on count 1. (Cal. Rules of Court, rule 4.421(a)(1).) Although the court did not explain its imposition of the section 12022.53(b) enhancement on count 1, the law requires its imposition unless the court, in its discretion, finds it in the interest of justice to strike or dismiss it. (§ 12022.53, subds. (b), (h).) Defendant fails to acknowledge this, much less argue the court abused its discretion in refusing to dismiss the enhancement. (See Cal. Rules of Court, rule 4.428(b).)
Finally, contrary to defendant's contention, the trial court gave a proper reason for imposing consecutive terms when it indicated defendant's attempt to dissuade Socorro from testifying truthfully justified consecutive terms. (Cal. Rules of Court, rules 4.421(a)(6), 4.425(b); see People v. Osband (1996) 13 Cal.4th 622, 728-729 [only one aggravating factor is required to impose consecutive terms].)
In sum, we reject the claim that the trial court punished defendant for exercising his jury trial right.
D. Application of Section 654 to Counts 4, 5, and 6
The jury convicted defendant of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 4), assault with a deadly weapon (§ 245, subd. (a)(1), count 5); and attempted criminal threats (§§ 664/422, count 6) against Miguelito. These convictions were based on defendant's actions during their fight. Defendant contends the trial court should have stayed punishment on count 4 or count 5, and on count 6 pursuant to section 654. We agree the court should have stayed the sentence on count 4 or count 5, but reject the contention as to count 6.
1. Legal Principles
Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute proscribes punishment for multiple crimes arising from a single act, and also for multiple crimes arising from an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789 (Hicks).) We determine whether a course of conduct is "divisible" by looking at the defendant's intent and objective, not the temporal proximity of the offenses. (Ibid.) " '[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' " (Ibid.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
A course of conduct is divisible in time " 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718 (Lopez); see, e.g., id. at p. 718 [where the defendant stole a purse and drove to a store where he charged the victim's credit card, punishment for both offenses was proper because the amount of time between the two offenses was sufficient for him to reflect upon what he had already done (stolen the victim's purse) and what he was about to do (use the victim's credit card to obtain merchandise)].)
We review factual determinations for substantial evidence. (People v. Valli (2010) 187 Cal.App.4th 786, 794.) The applicability of section 654 to conceded or undisputed facts raises a question of law that we review de novo. (Harrison, supra, 48 Cal.3d at p. 335; People v. Corpening (2016) 2 Cal.5th 307, 312.)
2. Counts 4 and 5
There is no dispute the assault counts at issue (counts 4 and 5) both occurred during defendant's fight with Miguelito in the home. There was uncontradicted evidence the fight lasted about five minutes. Count 4 concerned defendant putting Miguelito into a headlock at the beginning of the fight, whereas count 5 concerned defendant's throwing the statue at Miguelito towards the end of the fight. Defendant contends counts 4 and 5 were committed during a single indivisible course of conduct, during which defendant had one objective: to physically injure Miguelito.
The People respond by first arguing section 654 did not bar multiple punishment because the two assaults were separated by a pause in the fight, during which defendant had time for reflection, and during which both men calmed down. We find this argument unpersuasive.
While the evidence reflects there was a pause in the physical fight just before defendant threw the statue, it was undisputed that the pause lasted for "a split second" or only a "couple [of] seconds." Furthermore, the evidence was uncontradicted that both men were blind to anything else going on in the room, and that during the alleged pause, the two men were taunting and yelling at each other, with Miguelito trying to humiliate defendant by pulling his pants down. Examining these facts independently, we conclude that a split-second pause during such a heated fight, and during which the combatants continued to provoke each other, fails to establish that the charged acts were "temporally separated in such a way as to afford the defendant opportunity to reflect." (Lopez, supra, 198 Cal.App.4th at pp. 717-718.)
The People next contend there was evidence showing defendant had a different objective or intent when he held Miguelito in a headlock versus when he threw the statue at him: namely, there was evidence that defendant intended to defend himself, rather than injure Miguelito, when he held Miguelito in the headlock. The only evidence the People cite in support of this contention is Miguelito's testimony: when asked who started the fight, Miguelito said that he did not remember, and that the first thing he remembered after exchanging words with defendant was defendant holding him in a headlock. The People contend Miguelito's vagueness about who started the fight and his lack of recollection support the inference that Miguelito started the fight. Again, we are unpersuaded.
Because this claim concerns undisputed facts, we again apply a de novo review standard. Here, the record is devoid of evidence about whose action initiated the physical portion of the fight, and even generously assuming that Miguelito did so, what force, if any, he used and whether defendant reacted reasonably. (See CALCRIM No. 3470 [a defendant acts in lawful self-defense if he or she (1) reasonably believed he or she was in imminent danger of suffering bodily injury or being touched unlawfully, (2) reasonably believed the immediate use of force was necessary to defend against that danger, and (3) he or she used no more force than reasonably necessary to defend against that danger].) The People cite no analogous authority supporting the propriety of multiple punishment under section 654 where, as here, the lack of evidence renders it speculative to conclude that the defendant acted in self-defense.
We would, however, reach the same conclusion if we applied the deferential substantial evidence standard as the People argue.
The fact that the trial court instructed on self-defense as to count 4 does not require us to reach an alternative conclusion, and the People do not argue as much.
The People raise no other claims concerning the application of section 654 to counts 4 and 5. Accordingly, based on the undisputed evidence, we conclude section 654 proscribes multiple punishment for both counts 4 and 5. Since section 654 requires punishment "under the provision that provides for the longest potential term of imprisonment," and because counts 4 and 5 carry the same potential punishment, we will remand the matter for the trial court to stay the sentence on either count 4 or count 5.
3. Count 6
The attempted criminal threats conviction (count 6) was based on evidence that defendant threatened to kill Miguelito during the fight. The evidence on the timing of defendant's threat varied, but—applying the substantial evidence standard because these facts are in dispute—we conclude there was substantial evidence that defendant made the threat after putting Miguelito in a headlock and after throwing the statue, and that soon after making the threat, Miguelito left the house while defendant went to retrieve a gun. Considering the evidence of the timing of the threat and how that threat differed in nature from defendant's assaultive conduct, a reasonable trier of fact could conclude that (1) the threat furthered a separate criminal objective—i.e., to cause Miguelito to suffer sustained fear for his life and leave the house and (2) the threat was not merely incidental to the assaultive conduct, which already occurred. (People v. Mejia (2017) 9 Cal.App.5th 1036, 1047 ["mentally or emotionally terrorizing the victim by means of threats is an objective separate from the intent to cause extreme physical pain"].) Accordingly, section 654 does not proscribe punishment for count 6, and we find no error in punishing defendant for it.
E. Custody Credit
Defendant was in presentence custody for a total of 728 days. During that period, the trial court found him incompetent to stand trial and committed him to Napa State Hospital (NSH), where he stayed for 36 days. At sentencing, the court awarded him no conduct credit under section 4019 for that time at NSH. Defendant now contends he is entitled to 36 additional conduct credits because he was competent when admitted and throughout his stay at NSH, and he never received treatment aimed at competency restoration there. The People concede the issue.
In light of the People's concession, the evidence in the record, and case law on the matter, we conclude defendant is entitled to the additional credit that he seeks. (People v. Bryant (2009) 174 Cal.App.4th 175, 182, 184; cf. People v. Cramp (1984) 162 Cal.App.3d 632, 633; People v. Guzman (1995) 40 Cal.App.4th 691, 693-695.)
F. Imposition of Fines, Fees, and Assessments
At sentencing, the trial court ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), imposed but stayed a $300 parole revocation restitution fine (§ 1202.45), and imposed a $280 court operations assessment (§ 1465.8) and a $210 criminal convictions assessment (Gov. Code, § 70373). The court later issued an abstract of judgment indicating it imposed the foregoing restitution fine and parole revocation restitution fine, and imposed $240 for the section 1465.8 assessment and $180 for the Government Code section 70373 assessment. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues we should strike the assessments, and stay the execution of the restitution fine and parole revocation restitution fine, until the prosecution demonstrates defendant has the ability to pay them.
Because defendant suffered six convictions total, the amounts in the abstract imposed for the aforementioned assessments appear to be correct. (§ 1465.8, subd. (a)(1) ["an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense"]; Gov. Code, § 70373, subd. (a)(1) ["The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony"].) Neither party addresses the discrepancy or argues any need to correct the abstract.
We conclude defendant forfeited these claims. Defendant did not object to the fines or assessments on the basis of an inability to pay. A timely objection below, however, was required to preserve these claims. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen); People v. Trujillo (2015) 60 Cal.4th 850, 855-859.)
Defendant fails to show an applicable exception to the doctrine of forfeiture. His claim that the sentence is unauthorized is not well taken because the fines and assessments were within statutorily permissible amounts, and because the claimed error concerns the trial court's failure to determine defendant's ability to pay, which is a fact-specific issue that is not readily correctable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) We disagree with defendant's contention that Dueñas was an unforeseen and dramatic departure from the law at the time of sentencing, and that an objection therefore would have been futile. As one court put it, "Dueñas was foreseeable. Dueñas herself foresaw it." (Frandsen, supra, 33 Cal.App.5th at p. 1154.) Indeed, the principal cases relied on by Dueñas were not new ones (see Griffin v. Illinois (1956) 351 U.S. 12; In re Antazo (1970) 3 Cal.3d 100; Bearden v. Georgia (1983) 461 U.S. 660), and defendant cites no well settled law that foreclosed a constitutional challenge to the imposition of the fines, fees, and assessments without consideration of ability to pay.
Even assuming there was no forfeiture, we would reject the claim. Courts have criticized the holding in Dueñas. (See, e.g., People v. Caceres (2019) 39 Cal.App.5th 917, 923-929; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, rev. granted Nov. 26, 2019, S258946.) We need not offer our own opinion because even if the holding in Dueñas was correct, we would conclude, on this record, that the error was harmless beyond a reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 140.) Defendant was sentenced to a lengthy prison term of 24 years. The total amount of the challenged fines, fees and assessments listed in the abstract was $720. Nothing in this record indicates that defendant will be unable to work or ineligible for prison work assignments. Moreover, one can reasonably infer that a sufficient amount to cover $720 will be deducted from defendant's prison wages over the course of his imprisonment. (Id. at pp. 139-140.)
In sum, we reject defendant's Dueñas claim.
G. Instructions on Excessive Force
Defendant claims the trial court erroneously instructed the jury on count 1, assault with a semiautomatic firearm on Corporal D., by failing to give two instructions sua sponte related to Corporal D.'s use of force.
" 'In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.' [Citation.] That duty extends to ' "instructions on the defendant's theory of the case, including instructions 'as to defenses " 'that [(1)] the defendant is relying on . . . , or [(2)] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " ' " (People v. Anderson (2011) 51 Cal.4th 989, 996-997.) We review claims of inadequate jury instructions de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210 (Cole).)
Defendant first claims that the trial court erred because it did not sua sponte instruct the jury "that if Corporal [D.] was not lawfully performing his duty, [defendant] could not be convicted of assault on a peace officer engaging in the performance of his/her duties." We reject this claim. As the record reflects, the court here gave CALCRIM No. 860 and instructed that to find defendant guilty, the jury had to find that "[w]hen the defendant acted, the person assaulted [Corporal D.] was lawfully performing his duties as a peace officer."
Defendant next claims that the trial court should have instructed sua sponte that if Corporal D. used excessive force in detaining or arresting defendant, then he was not lawfully performing his duty. We likewise reject this claim, because defendant satisfies neither of the requirements for a sua sponte instruction. (Anderson, supra, 51 Cal.4th at p. 996.) First, defendant's theory at trial, made clear by his closing argument, was not that defendant assaulted Corporal D. in response to his use of excessive force; rather, his theory was that he did not commit any assaultive act at all, such as by raising his gun toward Corporal D. In this regard, we note defense counsel specifically stated he had no objection when the prosecutor withdrew his request for CALCRIM No. 2670, which would have instructed on any alleged use of excessive force by Corporal D.
Second, there is no substantial evidence supporting a defense based on excessive force. Although a defendant can be convicted of assaulting a peace officer with a semiautomatic firearm if the officer was lawfully engaged in the performance of his or her duties when the defendant committed the assaultive act (§ 245, subd. (d)(2); see CALCRIM No. 860), there was no evidence showing that defendant assaulted Corporal D. in response to Corporal D shooting at him. Indeed, to invoke the defense, defendant would have had to argue that he committed an act of assault when Corporal D. used excessive force, which would have been inconsistent with defendant's theory that no assault occurred at all. Again, the fact that defense counsel raised no objection when the prosecutor withdrew his request for CALCRIM No. 2670 aligns with the parties' apparent recognition that there was no evidence of excessive force.
We therefore reject defendant's claim of instructional error.
H. Instructions on a Lesser Included Offense
Finally, defendant claims the trial court erred by failing to instruct on count 1 with the lesser included offense of assault with a firearm (§ 245, subd. (a)(2)). Defendant argues the court should have instructed on this lesser because, as he argued in the preceding claim, there was evidence that Corporal D. used excessive force and therefore was not lawfully performing his duties.
Contrary to defendant's suggestion, there is nothing in the record reflecting that defendant's trial counsel requested an instruction on the lesser of assault with a firearm under section 245, subdivision (a)(2). Defendant points to a portion of the record showing his trial counsel asked for an instruction on section 241, subdivision (c), as a lesser, and the trial court said it would instruct on that lesser but not on the lesser of "simple assault." While defendant suggests that by "simple assault" the court meant a violation of section 245, subdivision (a)(2), the court, in the same discussion, used "simple assault" to refer to a violation of section 240.
As discussed, however, the evidence was insufficient to establish that defendant assaulted Corporal D. in response to the officer's use of excessive force. Therefore, there was nothing supporting defendant's current theory that he only violated section 245, subdivision (a)(2). (People v. Breverman (1998) 19 Cal.4th 142, 162 ["[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed"].)
We reject this claim of instructional error.
DISPOSITION
The judgment is reversed in part. Given our conclusion that section 654 proscribes multiple punishment for both counts 4 and 5, and given that counts 4 and 5 carry the same potential punishment, we remand the matter to the trial court with directions to stay the sentence on either count 4 or count 5. Additionally, the trial court is directed to award defendant a total of 728 days of conduct credit under section 4019. Finally, the court is directed to prepare an amended abstract of judgment reflecting these changes to defendant's sentence, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.