Opinion
E072875
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRION GEEBROOMFIELD, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1801018)) OPINION APPEAL from the Superior Court of Riverside County. Arjuna T. Saraydarian, Judge. Affirmed with directions. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Darrion Geebroomfield guilty of two misdemeanors: (1) battery of a cohabitant (Pen. Code, § 243, subd. (e)(1)); and (2) resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)). The trial court sentenced defendant to jail for a term of 360 days, which was a sentence of time served because defendant had a credit of 473 days.
The jury found defendant not guilty of the felony charge of willfully inflicting corporal injury upon a cohabitant. (Pen. Code, § 273.5, subd. (a).)
Defendant raises three issues on appeal. Defendant contends the trial court erred by (1) admitting evidence of two uncharged incidents of domestic violence (Evid. Code, § 1109); (2) including fines in the minute order that were not orally pronounced; and (3) imposing fines and fees without determining defendant's ability to pay (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)). We direct the trial court to correct the minute order, but otherwise affirm the judgment.
Defendant's writ petition, considered with this appeal, is resolved by separate order (In re Geebroomfield (case No. E072791)).
FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT'S CRIMES IN THE INSTANT CASE
The victim is female. The victim and defendant met in late 2015 and began dating in 2016. Defendant and the victim's relationship was "off and on" through August 2018 due to multiple incidents of domestic violence inflicted by defendant. On August 6, 2018, defendant, the victim, and Ana Dague were residing together. On that day, defendant and the victim argued while in their residence. The victim tried to get away from defendant, but she tripped and fell on a sofa in the living room. After falling, the victim was on her back on the sofa. Defendant "jumped on top of [the victim]." Defendant placed his knee on the victim and choked her with his hands. The victim pulled one of defendant's hands off of her, and defendant grabbed a pillow and attempted to smother the victim. The victim used her knees to kick and push defendant. The victim threatened to call the police. Defendant "took some of his stuff and left."
Later that night, defendant returned to the residence. Defendant attempted to strike the victim with his fist. Dague was not home during the attacks; she was at work. The victim telephoned and texted Dague. The victim told Dague to contact the police, which Dague did. The victim suffered bruises on her arms, chest, and back. The victim told the police that defendant caused the bruises. When speaking with police, the victim "was upset and she was kind of hesitant, like she wanted to talk to [the police] but she didn't want to talk to [the police]."
At trial, the victim could not recall if she was honest with the police officer who responded on August 6 because it "was typical" of the victim "to call the police and then change [her] mind when they g[o]t there," i.e., recant her allegations. The victim explained that she "would change [her] mind to protect [defendant]." When the victim spoke to the defense investigator, she said her August 6 accusations were untrue, that she suffered bruising due to taking a medication that caused her to bruise easily, that she suffered from mental illness, that she was "the one out of control" on August 6, and that she started drinking vodka and beer at noon on August 6. The victim refused to testify at the preliminary hearing in the instant case. The victim refused to testify because she "was trying to protect [defendant]." The victim also initially refused to testify at trial in the instant case and was held in contempt. The victim ultimately decided to testify truthfully at trial in the instant case because she "finally realized that if [she didn't, then she was] going to die."
On August 12, City of Hemet Police Officer Dylan Werts was on patrol, in uniform, in a marked patrol car looking for defendant. Werts saw defendant walking along a street. Werts parked his patrol car, exited the car, and asked defendant to talk. Defendant ignored Werts and walked away. Other officers activated their vehicles' lights and sirens. At that point, defendant ran. Officers, including Werts, ran after defendant shouting "police" and telling him to stop running. Defendant "jump[ed] backyard to backyard, fence to fence, going southbound." Werts was able to get into a backyard ahead of defendant. When defendant jumped into the backyard where Werts was waiting, defendant "turned around and ran the other direction." Werts ran after defendant. At that point, six patrol officers, a corporal, and a sergeant were chasing defendant, along with a helicopter. Werts was eventually able to catch-up to defendant "and tackle him to the ground." Defendant "attempt[ed] to get up" and struggled against Werts. Ultimately, other officers arrived and assisted in controlling defendant.
B. UNCHARGED PRIOR INCIDENTS
1. APRIL 2017
On April 30, 2017, defendant and the victim were homeless and living together on the street. On that day, defendant and the victim argued. The victim walked to a Burger King in order to be in a public place in case the argument turned physically violent. As the victim arrived at the Burger King, defendant attempted to strike the victim and she attempted to block the strike. The fight escalated and the victim was "knocked to the ground." Construction workers broke-up the fight. The victim suffered black eyes and injured lips. A deputy arrived and observed the victim's injuries. The victim broke-up with defendant for approximately two months following the April 30, 2017, incident.
2. OCTOBER 2017
On October 3, 2017, defendant and the victim were arguing while walking along a street. The victim threw her drink. Defendant "got physical," and the victim fell to the ground. Defendant then punched the victim's face, and the victim passed out. When the victim awoke, defendant was gone. The victim suffered two black eyes, a broken nose, and "a significant injury on the inside of her lower lip." On October 5, the victim's neighbor saw the victim's injuries and contacted the police. The victim spoke to the police on October 5. The trial court issued a no-contact order, protecting the victim from defendant. Defendant and the victim continued their dating relationship despite the no-contact order.
C. TRIAL COURT
In Autumn 2018, the prosecutor moved in limine to present evidence of four prior uncharged acts of domestic violence by defendant. On November 8, 2018, the trial court held a hearing on the motion. At the hearing, the prosecutor withdrew a portion of his motion, which left only two prior uncharged acts of domestic violence—the April and October 2017 incidents. The prosecutor said he would present the two incidents "[t]hrough testimony of the officer[s], as well as the convictions themselves as documentary evidence, and through the victim as well." As to documents, the prosecutor said, "I have certified plea documents from those two prior incidents, as well as the Information, as well as a criminal protective order."
Defendant's counsel said, "[W]e would object for the record. However—yeah—that would be—we'd have to submit and object for the record." The trial court said, "Well, it appears that pursuant to Evidence Code Section 1109, those would be admissible so I will allow them to be admitted."
Jury selection was scheduled to begin on November 14, 2018. On November 14, the trial court declared a doubt as to defendant's mental competence and the trial proceedings were suspended. (§ 1368.) On December 18, the trial court found defendant was mentally competent to stand trial and the proceedings resumed.
On February 25, 2019, the prosecutor again moved to present evidence of two uncharged acts of domestic violence by defendant: (1) the April 2017 incident at the Burger King; and (2) the October 2017 incident on the street. The prosecutor wrote, "The defendant's prior act[s] of domestic violence against the victim occurred less than two years ago from [the] current offense. The evidence will not consume too much time. The prior incident[s] show a pattern of abusive behavior, rather than isolated incidents leading up to the currently charged crimes. The evidence does not create a substantial danger of undue prejudice or of confusing the issues and it is not unduly inflammatory." It does not appear that the trial court ruled on the second motion.
DISCUSSION
A. UNCHARGED ACTS
Defendant contends the trial court erred by permitting the prosecutor to present evidence of uncharged acts because the evidence was unduly prejudicial.
" 'Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving . . . domestic violence (Evid. Code, § 1109.)' [Citation.] . . . [Evidence Code s]ection 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes.' " (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.)
Evidence Code section 1109 provides, "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352."
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " ' "The 'prejudice' referred to in . . . [Evidence Code] section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, 'prejudicial' is not synonymous with 'damaging.' " ' " (People v. Megown (2018) 28 Cal.App.5th 157, 164.) We apply the abuse of discretion standard of review. (Ibid.)
The evidence of defendant's uncharged domestic violence was probative because it demonstrated defendant's propensity to commit acts of domestic violence. (People v. Brown, supra, 192 Cal.App.4th at p. 1232 [propensity evidence is admissible in domestic violence cases].) Specifically, the uncharged acts occurred within 18 months of the charged violence and the charged and uncharged acts involved the same victim, which tends to establish that defendant had a propensity to be violent with the victim leading up to the charged crime. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 706 [evidence of uncharged violence is probative because it establishes a "pattern of domestic abuse"].) The evidence of the two uncharged acts of domestic violence was also probative because the charged domestic violence had no third-party witnesses. The fact that defendant had a pattern of committing domestic violence aided in establishing that defendant committed the charged crime when there were no direct third-party witnesses.
On the prejudice side of the scale, in terms of consumption of time, the victim and the police officers who spoke with the victim after the two uncharged offenses testified at trial about the uncharged acts. The testimony portion of the trial took two days, with all but one of the People's witnesses testifying on the first day of trial. The People's witness on the second day of trial testified about battered woman's syndrome. Therefore, the testimony concerning the two uncharged incidents was brief, i.e., less than one day, and did not consume an undue amount of time.
In regard to confusing the issues, all three domestic violence incidents (two uncharged and one charged) involved the same victim. However, the three incidents took place in different months, in different places, and involved different acts. The first uncharged incident occurred in April 2017 at a Burger King. In that first incident, defendant tried to hit the victim, the victim tried to block the strike, and the fight "just escalated" until it was broken up by nearby construction workers. The second uncharged incident occurred in October 2017 along a street. In that second incident, defendant punched the victim's face and she passed out. The third incident, which was charged, occurred in August 2018 at defendant's and the victim's home. Defendant choked the victim and tried to smother her with a pillow. Because the three incidents had distinct differences in time, place, and type of violence, it is unlikely the jury would have been confused by the inclusion of the two uncharged acts.
In sum, the evidence had probative value and minimal prejudicial effect. Therefore, it was within the bounds of reason for the trial court to allow the prosecutor to present evidence of the two uncharged acts of domestic violence. We conclude the trial court did not err.
Defendant contends that because the type of violence in the two uncharged acts was different from the smothering and choking in the charged incident, the uncharged act evidence lacked probative value. Defendant asserts the dissimilarity makes it so that a signature type of violence cannot be proven. The trial court could reasonably conclude that the violence was sufficiently similar because it all involved the victim, and that any lack of similarity was useful in not confusing the jury because nearly identical acts might have led to confusion. In sum, we find defendant's argument to be unpersuasive.
B. FINES AND FEES
1. PROCEDURAL HISTORY
Riverside County Superior Court case No. BAF1801018 pertains to the charged acts in this case, i.e., the August 2018 choking and smothering of the victim.
Riverside County Superior Court case No. BAF17001131 pertains to the October 2017 incident in which defendant punched the victim's face while they were along a street. In that court case, on April 12, 2018, defendant was placed on probation with a probation expiration date of April 11, 2023.
Riverside County Superior Court case No. RIF1701518 pertains to the April 2017 incident in which defendant struck the victim at a Burger King. In that court case, on May 16, 2017, defendant was placed on probation with a probation expiration date of January 17, 2021.
At the sentencing hearing in the instant case (BAF1801018), the trial court said, "So the Court will deny probation on those two counts and sentence you to 360 days in county jail concurrent to each other on each count with credit for 473 days. The credit time served is zero. So that takes care of the misdemeanors case."
The trial court held a brief hearing in which it found defendant violated his probation in the prior two cases (BAF17001131 & RIF1701518) by committing the two misdemeanors in the instant case (BAF1801018). In case No. BAF17001131 (pertaining to the October 2017 incident) the trial court sentenced defendant to prison for a term of eight years.
After pronouncing the prison sentence, the trial court ordered defendant not to have contact with the victim. The trial court continued, saying, "Pay the presentence probation, court costs not to exceed $1,095, booking fee $515.58, conviction assessment, $30 each for—and 35 for felony, $30 misdemeanors. Submit to HIV AIDS testing and DNA testing, and also $1,500 for the presentence incarceration costs. And submit thumb and palm prints, blood and saliva specimen to the Division of Adult Institutions. All these fines and fees you can pay through the Department of Corrections." After an interruption, the trial court continued, "Also restitution fine $2,400, parole revocation fine $2,400. That will be suspended unless parole is revoked."
Defendant's trial attorney requested the trial court "consider waiving any fees and fines that it can." The trial court clerk responded, "He'll earn money in prison, Judge." The trial court responded, "I know." The trial court stayed the $1,500 for presentence incarceration costs.
Case No. RIF1701518 (pertaining to the April 2017 incident) involved three counts. The trial court sentenced defendant to prison for one year on each of the three counts to be served concurrently to each other and concurrently to the eight-year sentence imposed in case No. BAF17001131.
The minute order from the sentencing hearing in the instant case (BAF1801018) reflects, "As to count(s) 01, 02, Court Operations Assessment fee of $40 imposed for each convicted charge. (1465.8 PC) Pay conviction assessment fee for the following convicted count(s) 01 02. (GC 70373). [$30 .each misd and felony] Pay restitution fine of $150.00 (PC 1202.4 (b)). Defendant ordered to report and cooperate with Enhanced Collection Division immediately or within two business days of release from custody."
1. ANALYSIS
a. Oral Pronouncement
Defendant contends the trial court erred by including fines and fees in the minute order for the instant case that were never orally pronounced. The People concede defendant is correct with the exception of the $30 conviction assessment fee.
"In a criminal case it is the oral pronouncement of sentence that constitutes the judgment." (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2017) 147 Cal.App.4th 380, 385.) " 'A judgment includes a fine.' " (Id. at p. 387.)
As to the $150 restitution fine, the imposition of the fine is discretionary. The law provides, "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (Pen. Code, § 1202.4, subd. (b); see also People v. Tillman (2000) 22 Cal.4th 300, 303 [discussing the discretionary nature of restitution fines].) At the sentencing hearing in the instant case, the trial court did not orally impose a $150 restitution fine. Accordingly, we conclude the $150 restitution fine in the minute order is an error, and we will direct the trial court to fix that error.
At oral argument in this court, defendant requested that we also direct the trial court to omit from its paperwork a corresponding parole revocation restitution fine (§ 1202.45). We have examined the April 5, 2019 minute order and do not see a parole revocation restitution fine listed. The omission of that fine is presumably due to defendant being sentenced to jail rather than prison. Accordingly, it appears no error was made pertaining to the parole revocation restitution fine.
Next, we address the $40 per count court operations fee. (Pen. Code, § 1465.8.) "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense." (Pen. Code, § 1465.8, subd. (a)(1).) The failure to impose mandatory fees constitutes an unauthorized sentence, which may be corrected by an appellate court. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1415.)
The People assert that because the trial court did not consider defendant's ability to pay the fine under Dueñas, the appellate court cannot correct the trial court's failure to orally pronounce the fine. The trial court did consider Dueñas and stayed the $1,500 presentence incarceration costs (Pen. Code, § 1203.1c). However, because the trial court did not orally pronounce the $40 per count court operations fee, it can reasonably be concluded that the trial court did not consider defendant's ability to pay that fee when conducting its Dueñas analysis. Therefore, because (1) the trial court did not orally pronounce the court operations fee; and (2) it is unclear if the court considered the court operations fee in its Dueñas analysis, we agree with defendant and the People that the minute order must be corrected to omit the fee.
The third fee at issue is the $30 per count court facilities fee. (Gov. Code, § 70373.) At the sentencing hearing, the trial court said, "Pay . . . $30 each for—and 35 for felony, $30 misdemeanors." In the case in which defendant was sentenced to prison (BAF17001131), the prison sentence was for one felony count (Pen. Code, § 273.5, subd. (f)(1)); there were no misdemeanors in that case. Accordingly, one can reasonably infer that when the trial court pronounced a $30 fee for misdemeanors, the trial court was referring to the instant case. Accordingly, the trial court properly pronounced that fee and it may remain in the minute order.
Defendant asserts the $30 per count fee should be stricken because defendant does not have an ability to pay the fee and the People did not present evidence of defendant's ability to pay the fee.
Defendant bore the burden of proving that he would be unable to pay the fee. (People v. Cowan (2020) 47 Cal.App.5th 32, 35; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; see also People v. Avila (2009) 46 Cal.4th 680, 729 [defendant bears the burden of proving inability to pay restitution].) "[T]he trial court is not limited to a consideration of a defendant's present ability to pay but may consider defendant's ability to pay in the future." (People v. Frye (1994) 21 Cal.App.4th 1483, 1485.) We apply the abuse of discretion standard of review. (People v. Sy (2014) 223 Cal.App.4th 44, 63; see also People v. Guillen (2014) 227 Cal.App.4th 934, 1033 [higher fines and restitution were within the trial court's discretion].)
The probation report reflects defendant had been employed in a warehouse. The trial court could reasonably conclude that this information demonstrated defendant's ability to earn money. Therefore, the trial court acted within the bounds of reason by concluding defendant had the ability to pay the $30 per count fee. Defendant asserts he suffers from paranoid schizophrenia and personality disorder, so he may be unable to work while in prison. The trial court could reasonably conclude that because defendant was previously employed in a warehouse, defendant would be able to once again secure employment. Accordingly, we conclude the trial court did not err.
b. Dueñas
Defendant contends the trial court erred by imposing fines and fees when defendant is unable to pay the fines and fees imposed.
"Our jurisdiction is 'limited in scope to the notice of appeal and the judgment appealed from.' " (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 846.) " '[W]here several judgments and/or orders occurring close in time are separately appealable . . . , each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.' " (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)
We have discussed ante the fines and fees imposed in the instant case. The fines and fees that defendant is discussing within this issue are those imposed in a different case—case No. BAF1700113—pertaining to the October 2017 incident for which the trial court sentenced defendant to prison for a term of eight years. Defendant's notice of appeal is only for the instant case—case No. BAF1801018. The notice of appeal reflects it is an appeal after a jury or court trial. (Pen. Code, § 1237, subd. (a).)
Defendant did not file a notice of appeal from case No. BAF17001131, and defendant did not indicate that he was appealing from a contested hearing concerning a violation of probation (Pen. Code, § 1237, subd. (b)). Because defendant did not appeal from case No. BAF17001131, we cannot review the imposition of fines and fees in that case.
Defendant contends this court can review the fines and fees imposed in case No. BAF17001131 because the trial court imposed a variety of fines and fees and mentioned misdemeanors, which would refer to the instant case. The trial court's reference to misdemeanors was limited to the $30 per count court facilities fee (Gov. Code, § 70373). The remaining fines and fees, such as the $2,400 restitution fine, are not included in the minute order for the instant case. They are not included in the minute order for the instant case because they pertain to defendant's other case—case No. BAF17001131. In sum, we cannot review the fines and fees because they were imposed in a separate case for which we do not have a notice of appeal.
DISPOSITION
The trial court is directed to correct its April 5, 2019, minute order to omit (1) the $150 restitution fine (Pen. Code, § 1202.4); (2) the $150 parole revocation fine (Pen. Code, § 1202.45); and (3) the $40 per count court operations fee (Pen. Code, § 1465.8). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.