Opinion
D074998
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ERICA DAWN HAYWOOD, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Donald W. Ostertag and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS300375) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Donald W. Ostertag and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Erica Haywood of resisting an executive officer in violation of Penal Code section 69. The court sentenced Haywood to the middle term of two years in county jail with a total of 420 days credit. The court imposed a minimum restitution fine (§ 1202.4, subd. (b)) along with several fines and fees.
Further statutory references are to the Penal Code unless otherwise stated.
Haywood contends: (1) the matter should be remanded for the trial court to consider whether to grant pretrial diversion pursuant to section 1001.36; (2) the court violated her constitutional rights to due process and equal protection by imposing fines and fees without considering her ability to pay; (3) there was insufficient evidence to support her conviction; and (4) the court violated her constitutional rights by instructing the jury regarding an erroneous theory of guilt. We conclude Haywood forfeited the first two issues by failing to object or raise the issues with the trial court. We conclude the remaining issues have no merit. We, therefore, affirm the judgment.
II
BACKGROUND
A
A police officer responded to a call from a security guard at a fast food restaurant regarding a woman who refused to leave the premises. The officer contacted Haywood and a portion of their interaction was recorded on his body-worn camera. When the officer asked why she did not want to leave, Haywood said she bought food and was told to go outside when she was finished eating. When the officer said they wanted her to leave the premises, Haywood said she had just finished eating and was preparing to leave. She wanted to know when she could come back. The officer asked Haywood to get up. Haywood continued arguing with the officer and refused to get up. The officer grabbed Haywood's arm to place her in handcuffs because she was yelling and noncompliant. Another gentleman intervened and got Haywood up to leave. Haywood yelled racial epithets and profanity at the officer as he continued to ask her to leave. She said, "Guarantee you, I got you, bitch."
Haywood continued to yell at the officer as she left the property. When the officer returned to his vehicle and tried to leave the parking lot, Haywood stepped in front of the officer's vehicle and blocked his exit. She shouted curse words and obscenities at the officer and told him to hit her. Over the car's loudspeaker, the officer asked Haywood to move so he could leave. Haywood continued to yell at the officer, but she moved to the sidewalk on the right of his vehicle.
Haywood picked up a cup and threw it through an open window on the passenger side of the police vehicle. The officer was not concerned about the cup, but when the officer saw Haywood pick up a baseball-sized rock, he parked and exited the vehicle because he believed she was going to throw it at him. As he was exiting the vehicle, she threw the rock at him through the window. The rock did not hit the officer, but fell out of the driver's side door. The officer decided to place Haywood under arrest when she threw the rock. He believed there was probable cause to arrest her for assault with a deadly weapon.
As the officer exited the vehicle and approached Haywood again, she challenged him saying, "Here. Come on. Come on. Come on. Come on, bitch!" The officer told Haywood to turn around. When Haywood refused to turn around and continued challenging him, the officer grabbed her arm to put her hands behind her back to handcuff her. Haywood swore at the officer, resisted, and pulled away.
A cell phone recording showed the officer attempt to take Haywood down by grabbing and pulling Haywood's left elbow while using his right arm around her neck and pushing his hip into her hip to take her down. The officer got Haywood into a seated position and waited for backup. When fire and paramedic personnel arrived, they assisted with taking Haywood into custody. During the struggle, Haywood bit the officer's forearm. The officer punched Haywood and then pulled her to the ground on her stomach. With the assistance of firefighters, the officer handcuffed her. The officer sustained a scratch on his right wrist, a scratch on the back of his neck, and an abrasion on his arm where Haywood bit him.
B
Haywood testified on her own behalf. She stated she purchased food at the restaurant twice that day. When the manager asked her to leave, she said she "just got some food." The manager asked her to go outside when she was done eating, which she did. When she was outside, two store managers came outside and exchanged words with Haywood. She said they were trying to push her off the property after she consumed a meal. She told the managers to do what they needed to do, meaning they should call the police. She wanted something in writing about why she needed to leave. She said she wanted a criminal trespass charge.
Haywood said she was sitting outside the restaurant using her computer and phone when the officer arrived and spoke with the security guard. Haywood said the officer approached her while putting on black gloves, which she took as aggressive behavior. When he asked her to leave, she said she asked how long she needed to be gone. She said they got into a problem because he did not allow her time to pack her things.
On cross-examination, Haywood said she packed to go when the manager spoke to her the second time, but she waited for the officer. She said she wanted to clarify what she had done that was against the law or the restaurant's policy so it would not report her again if she returned.
Haywood said she was "flabbergasted" when the officer grabbed and twisted her wrist. Another gentleman helped Haywood up. She admitted getting into a verbal exchange with the officer and that it "got racial." She testified her statement saying, "Guarantee you, I got you bitch," was not a challenge to a fight, but meant the incident was not over and she intended to do something about him putting his hands on her.
Haywood admitted standing in front of the officer's vehicle and yelling in "protest." She admitted she may have moved or tossed items, but denied knowing if they were directed at the car or at the window. She later said she was in a rage and did not remember what she threw. She denied throwing a rock.
The officer got out of his car, walked toward her, and gave her an order. She thought he might be doing a mental health detention. She remembered him grabbing her, but said she blacked out, which she tends to do when she gets angry. However, Haywood said she remembered the officer having his arm around her neck and she could not breath. She also remembered biting him because he was beating her up in public. She said she felt she acted in self-defense.
Haywood stated she was prescribed medication for bipolar and schizophrenia conditions, but she had not taken the medication because she had difficulty obtaining them after moving to California. Haywood's demeanor on the stand became argumentative and combative on cross-examination when she was asked if she did not like people telling her what to do and about her prior felonies.
Haywood's criminal history involved charges of obstructing and resisting law enforcement officers.
II
DISCUSSION
A
Mental Health Diversion
Haywood contends we should conditionally reverse the judgment and remand to allow the trial court to determine whether to grant diversion pursuant to section 1001.36. We conclude Haywood forfeited this claim.
Effective June 27, 2018, the Legislature created a discretionary diversion program for defendants with qualifying mental disorders. (§ 1001.36, subd. (a).) One purpose of the program is to "[i]ncrease[] diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a).)
The court may grant pretrial diversion if a defendant meets six requirements: (1) the court is satisfied that the defendant suffers from a qualifying mental disorder, "including, but not limited, to bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder ...."; (2) the court is satisfied the "defendant's mental disorder was a significant factor in the commission of the charged offense"; (3) a qualified mental health expert opines "the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment"; (4) the defendant "consents to diversion and waives [his or her] right to a speedy trial"; (5) the defendant "agrees to comply with treatment as a condition of diversion"; and (6) the court is satisfied "the defendant will not pose an unreasonable risk of danger to public safety ... if treated in the community." (§ 1001.36, subd. (b).)
Amendments to section 1001.36, effective January 1, 2019, eliminate application of the diversion program to certain enumerated violent crimes, which are not applicable to this case. (Stats. 2018, ch. 1005, § 1.)
Section 1001.36 provides for consideration by the trial court of whether the defendant has made a prima facie showing of eligibility for pretrial diversion "[a]t any stage of the proceedings." (Id., subd. (b)(3).) It is available "at any point in the judicial process from the point at which the accused is charged until adjudication." (Id., subd. (c).)
The rule of forfeiture applies when a defendant has the opportunity to request that the trial court grant discretionary relief but does not raise the issue until appeal. (Cf. People v. Carmony (2004) 33 Cal.4th 367, 375-376 ["any failure on the part of a defendant to invite the court to dismiss [a strike] under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal"]; People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to discretionary sentencing choices forfeits challenges on appeal].) There was sufficient time to attempt to make a prima facie case of Haywood's eligibility for pretrial diversion before the case was adjudicated. As of June 27, 2018, when the pretrial diversion law took effect, Haywood could have requested pretrial diversion "at any point ... until adjudication." (§ 1001.36, subd. (c).)
The issue of Haywood's mental health was at issue throughout the case before the trial court. The court suspended proceedings in June 2018 for a mental competency examination. After reviewing the psychologist's report filed in August 2018, the court found Haywood was competent to stand trial.
Section 1001.36 became effective June 27, 2018. This was shortly after the referral for a mental competency examination and more than three months before Haywood's trial in October 2018.
Haywood did not seek diversion prior to trial. Instead, Haywood asked if the court would refer her to Behavioral Health Court if she entered a plea. The court noted the defendant could be referred to Behavioral Health Court either after a plea or after a conviction, subject to acceptance into the program. The court noted it would be appropriate if probation were granted. After discussing the matter, including risks of not being accepted into the program, Haywood decided to proceed with trial.
Section 1001.36 had been in effect for more than four months by the time of the sentencing hearing. Haywood did not ask for mental health diversion, but again sought a referral to Behavioral Health Court. We, therefore, conclude Haywood forfeited her right to raise the issue of diversion for the first time on appeal.
Even if we were to exercise our discretion to excuse forfeiture (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 (Williams)), remand would be futile in this case because the record clearly indicates the court would not have exercised its discretion to grant diversion. At sentencing, the court initially considered granting the request to refer Haywood to Behavioral Health Court noting management of her mental health through medication and counseling could help her and protect the public. The court suggested giving her the referral and, if accepted, she would be placed on probation and monitored for three years. However, Haywood became argumentative and belligerent when the court offered the referral even though both the court and counsel tried to explain the program to her. In light of Haywood's prior criminal history and "her overall behavior and demeanor in court and in custody," the court ultimately determined mandatory supervision would not be appropriate. The court declined to impose a split sentence for the same reason. Given the court's conclusion Haywood would not be amenable to supervision or compliance due to her aggressive and oppositional behavior when confronted with authority structures, it is apparent the court would not have granted diversion. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
B
Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Haywood contends the court violated her due process rights by imposing fines and fees without first determining her ability to pay. Haywood asks us to strike the fines and fees or remand the matter for determination of her ability to pay. The People contend Haywood forfeited her claim by failing to raise the issue with the trial court. We agree with the People.
"At the core of the Dueñas opinion is its holding that imposition of fines, fees or assessments without a hearing on ability to pay denies due process. It was that court's view it was the trial court's duty to hold a hearing and thus failure to seek a hearing did not result in forfeiture. Further, the court found that the burden to prove 'present' ability to pay was on the prosecution. Other courts, including this court, have disagreed with Dueñas on these key principles." (People v. Keene (2019) 43 Cal.App.5th 861, 863 (Keene); see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327 [rejecting the Dueñas due process analysis for fines and fees], review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [applying excessive fine analysis for restitution fines]; and People v. Kopp (2019) 38 Cal.App.5th 47, 95-96 [concluding a defendant who requested ability to pay hearing bears burden of proof and applying due process analysis to court assessments and excessive fines analysis to restitution fines], review granted Nov. 13, 2019, S257844.)
There is also a split of authority regarding whether forfeiture applies to cases where a defendant failed to object to the imposition of fines and fees before Dueñas was decided. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [forfeiture found for restitution fines and fees in excess of statutory minimum] and People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 [same] with People v. Castellano (2019) 33 Cal.App.5th 485, 489 [court declined to find forfeiture for minimum fines and fees] and People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson) [same]; People v. Belloso (2019) 42 Cal.App.5th 647, 662 [same], review granted Mar. 11, 2020, S259755.)
The court here imposed a total of $524 in fines and fees based on a minimum restitution fine in the amount of $300 (§ 1202.4, subd. (b)), a court security fee of $40, the immediate critical needs account fee of $30, and the criminal justice administration fee of $154. Haywood did not object to the fines or fees or request an ability to pay hearing in the trial court at the time of sentencing. (§ 1237.2; see People v. Trujillo (2015) 60 Cal.4th 850, 861 ["[T]he sentencing hearing is, in general, the proper time for a defendant to assert all available procedural and factual contentions relating to the trial court's sentencing choices ...."].) "The concept of forfeiture for failure to raise ability to pay fines, fees or assessments is well established in our case law prior to Dueñas." (Keene, supra, 43 Cal.App.5th at p. 864.) Therefore, we conclude Haywood forfeited her challenge to the restitution fines and fees. (Id. at pp. 863-864.)
The court also ordered restitution to the victim "in an amount to be determined." Haywood does not challenge this order in this appeal.
However, even if we were to exercise our discretion to consider the claim on the merits (see Williams, supra, 17 Cal.4th at p. 161, fn. 6), we would conclude any error was harmless. In Johnson, supra, 35 Cal.App.5th at page 140, the court concluded any error in imposing a minimum restitution fine and court fees and assessments without an ability to pay hearing was harmless because the record showed the defendant had some financial means and past income-earning capacity as well an ability to earn prison wages. (Id. at pp. 137, 139-140; see also People v. Jones (2019) 36 Cal.App.5th 1028, 1035-1036 [same].) Similarly, Haywood is a high-school graduate who has attended college. She says she has been to paralegal school and has worked for lawyers in another state. Haywood reported she has a "mobile retail business" and was working in Mexico prior to her arrest. She has also worked as a restaurant server. Although she said she was struggling financially prior to her arrest, she receives public benefits and reported receiving death benefits and an inheritance. Therefore, the record before us forecloses any inability-to-pay argument for the minimal fines and fees imposed in this case and renders any error harmless. (Jones, at p. 1035; Johnson, supra, 35 Cal.App.5th at pp. 139-140; see People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider a defendant's future ability to pay restitution].)
C
Sufficiency of the Evidence
Haywood contends there is insufficient evidence to support her conviction for violation of section 69 because: (1) the officer had completed the call and was not performing his duties when she threw the rock at him; and (2) he was not lawfully arresting her when she bit, scratched, and resisted arrest because he had not given her notice of why he was arresting her as required under section 841. We disagree with both contentions.
Section 841 provides: "The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape.
The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested."
"Upon a challenge to the sufficiency of evidence for a jury finding, we ' " ' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " ' [Citation.] 'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.' " (People v. Rivera (2019) 7 Cal.5th 306, 323-324.) We presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Clark (2011) 52 Cal.4th 856, 943.) We may not reverse a conviction for insufficient evidence unless " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 69 makes it an offense to "attempt[], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law" or by "knowingly resist[ing], by the use of force or violence, such officer, in the performance of his or her duty." (§ 69.) "The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." (In re Manuel G. (1997) 16 Cal.4th 805, 814 (Manuel G.).)
The first type of offense requires specific intent to interfere with an executive officer's performance of his or her duties. (People v. Nishi (2012) 207 Cal.App.4th 954, 967.) "The central requirement of the first type of offense under section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made." (Manuel G., supra, 16 Cal.4th at p. 815.) It can be established by a threat without physical force. (Id. at p. 814.) It is not required that the victim took the threat seriously or that the defendant had the present ability to carry out the threat. (People v. Hamilton (2009) 45 Cal.4th 863, 936; see also People v. Iboa (2012) 207 Cal.App.4th 111, 118 [threatening statements combined with threatening physical behavior constituted a threat of violence prohibited by section 69].) Further, this "first way of violating section 69 'encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future.' [Citation.] ... [Citation.] '[T]he statutory language [of the first clause of section 69] does not require that the officer be engaged in the performance of his or her duties at the time the threat is made.' " (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith), quoting Manuel G., supra, 16 Cal.4th at p. 817, fn. omitted.) "The second way of violating section 69 expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense." (Smith, at p. 241.)
There was substantial evidence to support a finding Haywood violated section 69 in both ways. There was evidence she violated the statute in the first way by throwing the rock at the officer through the patrol vehicle's window. Although he had completed the call related to her conduct, her action in throwing a rock at him as he attempted to leave showed an intent to deter or prevent him from performing his duties of patrolling and responding to other calls. (Manuel G., supra, 16 Cal.4th at p. 810 [threats intended to deter an officer from lawfully performing duties in the future violate section 69].)
Additionally, there was substantial evidence to support a finding Haywood violated section 69 in the second way by resisting the officer's lawful attempt to arrest her after she threw the rock. The officer had reasonable cause to believe she committed a crime in his presence when she threw the rock at him and he was concerned she would continue to fight or throw another object. Haywood testified she knew the officer intended to detain her when he got out of the vehicle and told her to turn around. She did not comply with his requests to turn around and immediately resisted, including by scratching and biting the officer as he tried to place her in handcuffs. Therefore, it was not necessary to advise her of the grounds for arrest because the officer had probable cause to believe she actually committed an offense and he detained her immediately thereafter. (§ 841; see also People v. Valenzuela (1959) 171 Cal.App.2d 331, 333 [notice under § 841 excused when "it should be quite apparent to the defendant, in the face of the circumstances related, that he was in fact under arrest for an offense committed in the presence of the officer"], disapproved on other grounds by In re Culver (1968) 69 Cal.2d 898, 903-904 & fn. 8.)
Haywood testified she thought the officer intended to detain her for a mental health hold. This would have been the performance of another lawful duty.
D
Jury Instructions
Having rejected Haywood's contention there was insufficient evidence to support a conviction for a violation of section 69 based on the rock throwing incident, we likewise reject her contention the court violated her constitutional rights by instructing the jury on this theory of guilt.
The court determined it was appropriate for the jury to make a factual determination based upon the prosecutor's four theories for resisting or deterring a peace officer in violation of section 69. The court gave the following unanimity instruction: "The defendant is charged with resisting an executive officer in count one. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act she committed. The People are alleging the following four acts: 'Throwing the rock or piece of wood, biting [the o]fficer ..., scratching [the o]fficer and ... resisting [the officer's] attempts to handcuff the defendant.' "
As we explained in section II.C., ante, there was evidence to support each of the People's theories of guilt. Therefore, the court's instruction complied with its obligation to " 'instruct the jury on all general principles of law relevant to the issues raised by the evidence.' " (People v. Rogers (2006) 39 Cal.4th 826, 866.)
III
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. IRION, J.