Opinion
B294413
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE ANDRE HARRIS, Defendant and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Deputy Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA462337) APPEAL from the judgment of the Superior Court of Los Angeles County. Craig Richman, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Deputy Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Willie Andre Harris was convicted of voluntary manslaughter for the stabbing death of Naar Morris and sentenced to seven years in prison.
Defendant contends the trial court abused its discretion by denying his midtrial request for a continuance to locate a witness and imposing the midterm rather than the low-term sentence. He further contends the court's imposition of various statutory fines and fees, as well as victim restitution, without first holding an ability to pay hearing violated his constitutional rights.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with the murder of Mr. Morris (Pen. Code, § 187), along with an allegation he personally used a deadly weapon (a knife) in the commission of the offense (§ 12022, subd. (b)(1)). The case proceeded to a jury trial in August 2018. Testimony at trial established the following material facts.
In October 2017, Chanel McKellop was a resident at a First to Serve shelter on Vernon Boulevard in Los Angeles. Mr. Morris, who went by the nickname Brooklyn, also lived at the shelter and was dating Ms. McKellop. Another resident, Curtis "Blue" Stidhum, was one of their friends. Ms. McKellop and Mr. Morris also knew defendant and his longtime friend, Charles Turner, but they did not hang out together.
Around 9:00 p.m. on October 22, Vincent Milewski, another resident of the shelter, looked out his window and saw Mr. Morris, Mr. Stidhum and defendant arguing in the street. Mr. Stidhum pushed defendant to the ground and then he and Mr. Morris walked back inside the shelter. Footage from a security camera showing the incident was played for the jury.
Defendant returned to the shelter and went upstairs to the room he shared with Mr. Turner. Defendant told Mr. Turner that Mr. Morris and Mr. Stidhum had "jumped" and robbed him. Mr. Turner had known defendant for over 30 years, considered him like family and felt very protective of him. Mr. Turner went to find Mr. Morris and Mr. Stidhum to ask them about the incident. Mr. Turner testified he did not have a weapon, and he just wanted to have a "man to man" talk with Mr. Morris and Mr. Stidhum.
Meanwhile, Ms. McKellop, Mr. Morris, Mr. Stidhum and another female friend walked to the liquor store at the corner. While they were inside the store, Mr. Turner showed up and gestured at Mr. Stidhum to go outside. Everyone followed them outside.
Mr. Turner and Mr. Stidhum yelled back and forth at each other. Something was said that caused Mr. Morris to throw a punch at Mr. Turner, and then they both started punching each other. Mr. Turner said his argument with Mr. Morris remained verbal. Mr. Stidhum was not involved in the physical fight, and Ms. McKellop did not see anyone using a weapon.
Defendant then arrived on the scene. Ms. McKellop saw that defendant's left hand was in his pocket, so she yelled for Mr. Morris to "watch his back." Defendant started fighting with Mr. Morris, and Mr. Turner dropped back. Ms. McKellop saw what looked like a knife in defendant's hand as he and Mr. Morris continued to fight. Leon Taft, one of the shelter security guards, rushed over and intervened, tackling defendant to the ground. Ms. McKellop saw Mr. Morris on the ground covered in blood. Mr. Stidhum, who had also tried to break up the fight, had a cut on his arm. Ms. McKellop did not see anyone other than defendant with a weapon.
Mr. Turner testified that when defendant arrived, he was "jumped" by Mr. Morris and Mr. Taft. He denied seeing any weapons or knowing how Mr. Morris came to be lying on the ground with blood on his shirt. He also denied telling the investigating officers that he saw defendant stab Mr. Morris. An excerpt of the recording of Mr. Turner's pretrial statement to police in which he said he saw defendant stab Mr. Morris was played for the jury.
After the altercation, Mr. Turner returned to the shelter. He said defendant never returned to their room that night.
Around 9:30 p.m., Brian Farris, a paramedic with the Los Angeles City Fire Department, was sitting in his unit with his partner at the intersection of Western and Vernon. Mr. Farris noticed some sort of commotion where a group of six to eight people were gathered outside a liquor store. Mr. Farris saw one man pushed up against the wall and another man who appeared to be stabbing him. The assailant's arm was moving repeatedly in a distinctive thrusting motion toward the other man's torso. Mr. Farris called the police department to report the altercation and requested that officers respond. Mr. Farris then saw the man against the wall fall to the ground. Several bystanders ran towards Mr. Farris's truck asking for help. Mr. Farris and his partner reported to dispatch they were going to respond to the incident.
Mr. Farris and his partner placed the victim (later determined to be Mr. Morris) on a body board and got him into the back of their unit. He was unconscious and his clothes were soaked with blood. When he cut off the bloody shirt, Mr. Farris saw several, significant chest wounds that were consistent with knife wounds. During the drive to California Hospital, Mr. Morris went into cardiac arrest.
Surgeons at California Hospital attempted unsuccessfully to repair the damage to Mr. Morris's heart. Mr. Morris died from the stab wounds he received in the fight.
Detective Sarah Kallian testified that Ms. McKellop identified defendant as the individual who stabbed Mr. Morris. Detective Kallian also spoke with Mr. Taft, the shelter security guard. He was reluctant to testify in court but was willing to talk to her. Mr. Taft told her that defendant stabbed Mr. Morris.
When called to testify, Mr. Taft admitted to seeing a fight and trying to break it up, but otherwise repeatedly claimed to not remember much and said he did not want to be in court. He admitted he "pretty much" told the truth to the police when they interviewed him about the incident. An excerpt of Mr. Taft's recorded pretrial statement to police was played for the jury. In the interview, Mr. Taft said defendant had a pocket knife and was "the one that did the stabbing." He broke up the fight by grabbing defendant and throwing him to the ground, " '[c]ause I'm not going to just sit there and see somebody get stabbed."
The jury acquitted defendant of murder and found him guilty of the lesser included offense of voluntary manslaughter. The jury found true the allegation that defendant personally used a deadly weapon in the commission of the offense.
At the sentencing hearing, the court imposed a midterm sentence of six years (Pen. Code, § 193, subd. (a)) and enhanced the sentence with a consecutive one-year term for the personal use of a deadly weapon. Defendant was awarded 809 days of presentence custody credits.
The court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court security fee (Pen. Code, § 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and imposed and stayed a $300 parole revocation fine (Pen. Code, § 1202.45). The court also ordered restitution to the victim's family in the amount of $1,909, plus $7,500 payable to the California Victim Compensation Board.
This appeal followed.
DISCUSSION
1. The Denial of the Motion to Continue
Defendant contends the trial court abused its discretion in denying his request for a continuance to locate a material witness. We are not persuaded.
"The decision whether to grant a continuance of a hearing to permit counsel to secure the presence of a witness rests in the sound discretion of the trial court. [Citations.] 'To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' " (People v. Roybal (1998) 19 Cal.4th 481, 504; see also Pen. Code, § 1050, subd. (e) ["Continuances shall be granted only upon a showing of good cause."].)
The facts related to defendant's motion to continue are these. On August 29 during the prosecution's case-in-chief, defense counsel told the court he expected to call Mr. Stidhum as a witness. Mr. Stidhum was in custody at the time on an unrelated matter. Mr. Stidhum had refused to be transported to court to testify that day.
The next day, the court advised counsel that it was seeking to determine if Mr. Stidhum was still in custody or had been released. At the end of the day, the court advised counsel that Mr. Stidhum had been released earlier in the day but had been ordered to appear in their courtroom the next morning as a condition of his release.
Mr. Stidhum did not appear the next day, and the court made additional inquiries. It determined Mr. Stidhum was actually still in custody but was to be released later that day, which was the Friday before the Labor Day holiday weekend. The court told counsel that it understood Mr. Stidhum was being ordered by the other court to appear first thing Tuesday morning.
On Tuesday morning, Mr. Stidhum was a no-show. Defense counsel said he was an important witness and moved for a continuance to attempt to locate him. Counsel conceded he had not interviewed Mr. Stidhum and could not state what his expected testimony would be. However, he anticipated, based on a prior interview with police, that he would say he saw Mr. Turner with a knife at some point that night and therefore, Turner was possibly the assailant. The prosecutor responded that the recording of Mr. Stidhum's police interview showed he clearly said defendant stabbed Mr. Morris, and only expressed doubt about how he received the knife wound on his arm in trying to break up the fight.
The court said they would proceed with the defense case and end early to allow defendant's investigator additional time to locate Mr. Stidhum. The court made another call to the department where Mr. Stidhum's case had been pending and asked for the location and phone number of the probation office to which Mr. Stidhum was ordered to report. That information was provided to defense counsel.
The next morning, defense counsel reported he had been unable to locate Mr. Stidhum and renewed the request for a trial continuance. He said Mr. Stidhum's probation officer told the investigator that Mr. Stidhum was "flaky" and often did not report in. The investigator had also checked at various shelters and on the streets surrounding the First to Serve shelter but did not find Mr. Stidhum. The court denied the request to continue trial.
Where, as here, a motion to continue is made during trial, the trial court has broad discretion to grant or deny relief "and appellate challenges to a trial court's denial of such a motion are rarely successful." (People v. Seaton (2001) 26 Cal.4th 598, 660.) The court " 'must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' " (People v. Zapien (1993) 4 Cal.4th 929, 972.)
The record amply supports the court's exercise of discretion. The substance of Mr. Stidhum's expected testimony was speculative. Defense counsel had not spoken to him, and the prosecutor said Mr. Stidhum told police that defendant, not Mr. Turner, stabbed Mr. Morris. Defendant could not show it was likely that Mr. Stidhum could be found within a reasonable period of time, as his whereabouts were unknown and he had no place to stay.
Moreover, defendant did not show any prejudice from the denial. (People v. Doolin (2009) 45 Cal.4th 390, 450 [absent showing of prejudice, a denial of a motion to continue does not warrant reversal]; accord, People v. Zapien, supra, 4 Cal.4th at p. 972.) "To establish prejudice, a defendant must show affirmatively that in the absence of the claimed error . . . a result more favorable to him probably would have ensued." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant had been identified by three different people as the person who stabbed Mr. Morris, including Mr. Turner who was defendant's friend. Even assuming Mr. Stidhum would have testified that he had seen Mr. Turner with a knife at some point that evening, he would have been impeached with his prior statement to police that it was defendant who stabbed Mr. Morris. It was not reasonably probable defendant would have obtained a more favorable outcome had Mr. Stidhum testified.
2. The Midterm Sentence
Defendant next argues the court abused its discretion in relying on inappropriate factors in aggravation for imposing the midterm sentence. The contention is without merit.
Penal Code section 1170, subdivision (b) provides in relevant part that where, as here, "a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." The statute further provides that "[t]he court shall select the term which, in the court's discretion, best serves the interests of justice." (Ibid.)
Here, the court selected the presumptive midterm sentence of six years. (Pen. Code, § 193, subd. (a).) The court found the crime was committed with a "high degree of cruelty, viciousness, or callousness" among other aggravating factors, but found in mitigation that the victim had been a "willing participant" in the altercation and defendant had a "relatively insignificant" criminal record. On balance, the court found the "midterm of six years in state prison [to be] the appropriate sentence."
Where, as here, the trial court balanced the aggravating and mitigating factors, the choice of the presumptive midterm sentence "need not be additionally justified." (People v. Leung (1992) 5 Cal.App.4th 482, 508.) There was no abuse of discretion. 3. Imposition of Statutory Fines, Assessments and Victim Restitution
Defendant, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), contends the court's imposition of a court security fee, a criminal conviction assessment, a restitution fine and victim restitution without a finding of his ability to pay violated his due process rights.
Defendant did not raise this objection in the trial court and has therefore forfeited the contention on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [finding forfeiture where no objection raised in trial court to imposition of court operation assessment, criminal conviction assessment and restitution fine]; accord, People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; see also People v. Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture where the defendant failed to object to imposition of restitution fine under Pen. Code, former § 1202.4 based on inability to pay].)
Defendant urges us to reject Frandsen and find the contention has not been forfeited, citing People v. Castellano (2019) 33 Cal.App.5th 485, 489. We believe Frandsen to be the better reasoned decision and conclude there is no basis for excusing defendant's forfeiture on this issue.
In any event, nothing in the record supports defendant's contention the imposition of the fines and assessments was fundamentally unfair to defendant or violated his constitutional right to due process as found in Dueñas. The fines and assessments were imposed pursuant to clear statutory authority. Dueñas not only involved unique factual circumstances not applicable here, but the validity of its analytical framework has been questioned by numerous courts: see, e.g., People v. Allen (2019) 41 Cal.App.5th 312, 326-329 (review den. Jan. 2, 2020); People v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329 (review granted Nov. 26, 2019, S258946); People v. Caceres (2019) 39 Cal.App.5th 917, 926-929 (review den. Jan. 2, 2020).
Defendant was represented by counsel at the sentencing hearing and in the absence of a timely objection, the trial court could reasonably presume the fines and assessments would be paid out of defendant's future prison wages. (See, e.g., People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
Defendant also asks us to extend Dueñas to the victim restitution orders imposed under Penal Code section 1202.4, subdivision (f). We decline to do so.
Victim restitution is fundamentally different than the statutory fines at issue in Dueñas. "The purpose of victim restitution . . . is neither to raise funds nor to punish a defendant; it 'is to reimburse the victim for economic losses caused by the defendant's criminal conduct, i.e., to make the victim reasonably whole.' [Citation.] [Penal Code] [s]ection 1202.4 implements the state constitutional mandate that 'all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.' (Cal. Const., art. I, § 28, subd. (b)(13)(A).)" (People v. Evans (2019) 39 Cal.App.5th 771, 777.)
The statutory scheme not only provides that the sentencing court "shall order full restitution" (Pen. Code, § 1202.4, subd. (f)), but also expressly states that "[a] defendant's inability to pay shall not be a consideration in determining the amount of a restitution order." (§ 1202.4, subd. (g).) Defendant has cited no authority supporting a requirement that the sentencing court must determine a defendant's ability to pay victim restitution.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.