Opinion
D075923
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. PAUL KONEN, Defendant and Appellant.
John L. Staley, 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, Charles Ragland and Heather B. Arambarri, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD277586) APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed as modified. John L. Staley, 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, Charles Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 2018, Paul Taylor Konen went paddle boarding off the coast of San Diego. While he was paddle boarding, he collided with a surfer riding a wave. Konen got into a verbal altercation with the surfer's husband about the collision and struck the husband with a carbon fiber paddle, causing him to suffer significant head trauma.
A jury convicted Konen of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and found true allegations that he personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)) and inflicted great bodily injury (§§ 1192.7, subd. (c)(8) and 12022.7, subd. (a)). The trial court sentenced him to a prison term of two years, plus a consecutive term of three years for the great bodily injury enhancement.
All statutory references are to the Penal Code unless otherwise noted.
Konen appeals the judgment of conviction. He asserts the trial court erred by: (1) admitting evidence that he collided with a different surfer one day prior to the assault at issue; and (2) determining the case was not an unusual case in which the interests of justice would be served by a grant of probation. Further, he argues we should strike various fines and fees from the abstract of judgment to ensure it corresponds with the oral pronouncement of judgment, which did not include any fines or fees.
Although the trial court did not impose any fines or fees during the oral pronouncement of judgment, we conclude the court was statutorily required to assess a court operations assessment of $40 (Pen. Code, § 1465.8), a criminal conviction assessment of $30 (Gov. Code, § 70373), and a criminal justice administration fee of $154 (Gov. Code, § 29550.1). Therefore, we modify the sentence to impose these mandatory fees, order the trial court to amend the abstract of judgment accordingly, and instruct the trial court to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
II
BACKGROUND
A
The victim, the victim's wife, and a friend went surfing near Point Loma. The victim caught a wave and spotted Konen on a paddle board riding the same wave in the opposite direction. The victim slid down to a seated position on his surfboard and put his hands in front of him to avoid a collision. He believed Konen interfered with his right of way by coming from the reverse direction on the wave and therefore asked Konen why he was there on the wave. Konen swung his paddle board near the victim's head and said, "If I can catch the wave, it is mine." Konen then paddled back out to the water.
Shortly after, the victim's wife caught a wave and Konen caught the same wave in the opposite direction, even though the victim's wife was already up on her surfboard and riding the wave. Surfing etiquette discourages interference with a surfer who is riding a wave because it creates the potential for a collision. Konen cut in front of the victim's wife, collided with her, and caused her to fall into the water.
The victim paddled toward Konen and confronted him about the collision. Konen began to paddle past the victim to the open ocean, but turned his paddle board around, raised his carbon fiber paddle, and struck the side of the victim's head. The victim bled from the head, temporarily lost consciousness, and experienced impaired speech. A later medical examination revealed the victim suffered a depressed skull fracture and pneumocephalus, a condition in which air is present inside the skull.
The victim's wife demanded an explanation from Konen. Konen replied, "If the Mother Earth brings me waves, I am going to take them," and blamed the victim's injury on "karma."
III
DISCUSSION
A
Evidence of Konen's Prior Collision
On direct examination, the prosecution asked the victim's wife whether she had interacted with Konen before the assault. Konen objected on relevance grounds and the court overruled the objection. Thereafter, the victim's wife testified she and the victim went surfing with a friend the day before the assault and Konen "ran into" her friend "without any regard for her safety." After the direct examination was complete, Konen's counsel asked to "expand" on its earlier relevance objection and argued the challenged testimony was improper character evidence. The court again overruled the objection.
Konen contends the trial court erred by admitting evidence of the prior collision because it invited the jury to convict him merely for being a so-called bully in the ocean. He argues the evidentiary ruling violated Evidence Code section 1101 and deprived him of his due process right to a fair trial under the federal Constitution. Further, he argues a mistrial should have been granted due to the admission of the challenged testimony.
Because Konen objected to the prior collision evidence solely on relevance grounds, he has forfeited his arguments that the admission of the evidence violated Evidence Code section 1101 and his federal due process rights. (Evid. Code § 353, subd. (a); People v. Doolin (2009) 45 Cal.4th 390, 437.) Konen's attempt to "expand" on the relevance objection, after the direct examination was completed, did not preserve the argument for our consideration. (People v. Boyette (2002) 29 Cal.4th 381, 423-424.)
Even if Konen's arguments were preserved, we would conclude the trial court did not err in admitting the evidence of the prior collision because the evidence was probative of Konen's intent. In general, evidence of a person's character or character trait, often referred to as propensity evidence, is inadmissible to prove the person engaged in conduct in conformity with the character or character trait. (Evid. Code, § 1101, subd. (a).) However, evidence of a "crime, civil wrong, or other act" is not rendered inadmissible if it is relevant to prove a fact other than a person's disposition to commit such an act—i.e., if it is offered for nonpropensity purposes. (Id., subd. (b).) For example, evidence may be admissible if it is probative of "motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident...." (Ibid.)
Evidence of uncharged conduct can be relevant to prove intent because " '[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 ....' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Exact overlap between uncharged conduct and charged conduct is not required for evidence of uncharged conduct to be relevant. (People v. Merchant (2019) 40 Cal.App.5th 1179, 1193, fn. 4.) "[A]ll that is needed is sufficient similarity to support the inference that the defendant probably harbored the same intent in each instance." (Ibid.) Rulings on the admissibility of evidence for nonpropensity purposes are reviewed for abuse of discretion. (People v. Rogers (2013) 57 Cal.4th 296, 326.)
Applying these standards, we conclude the trial court acted within its discretion when it admitted the evidence of the prior collision. At trial, the defense argued the prosecution could not prove beyond a reasonable doubt that Konen intended to strike the victim with his paddle. It argued the jury could reasonably infer that Konen accidentally struck the victim with his paddle board or his paddle while attempting to paddle out to the open ocean, an inference that would have negated the mens rea necessary to convict him of the charged offense. In the alternative, it argued the jury could infer Konen acted in self-defense because he feared the victim would harm him. Evidence suggesting Konen intentionally "ran into" the victim's companion one day earlier tended to negate the defense arguments that the charged conduct was an accident or an act of self-defense.
Further, the prior collision and the assault on the victim were sufficiently similar to support an inference that Konen harbored the same intent during each incident. The incidents occurred on back-to-back days. In both incidents, Konen was paddle boarding in the ocean near groups of surfers that included the victim and his wife. And, in both incidents, Konen's paddle board or paddle struck one of the nearby surfers. Although the incidents do not overlap precisely, they are sufficiently similar for us to conclude the trial court acted within its discretion when it admitted the evidence of the prior collision.
For the same reasons, we conclude there was no due process violation. " 'The admission of evidence results in a due process violation only if it makes the trial fundamentally unfair. [Citation.] "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." ' " (People v. Coneal (2019) 41 Cal.App.5th 951, 972.)
As noted, the jury could have drawn a permissible inference from the evidence of the prior collision, namely that Konen intended to strike the victim with his paddle. Konen has not articulated any basis from which to conclude the testimony was of such a nature as to prevent a fair trial. Further, the testimony concerning the prior collision was fleeting, constituting less than one page out of several hundred pages in the reporter's transcripts. For all these reasons, Konen has not established that he was subjected to a fundamentally unfair trial in violation of his federal due process rights.
Finally, we conclude a mistrial was not warranted. Although Konen requested a mistrial, the record indicates he based his request solely on allegations that the prosecution failed to produce discoverable information to the defense, not the trial court's evidentiary ruling. Therefore, Konen forfeited his claim of error. (People v. Collins (2010) 49 Cal.4th 175, 198.) Further, there were no grounds for a mistrial because, as previously discussed, the trial court acted within its discretion in admitting the evidence of the prior collision. (People v. Quaintance (1978) 86 Cal.App.3d 594, 601.)
B
Probation Eligibility
Konen was presumptively ineligible for a grant of probation because the jury found he used a deadly weapon and willfully inflicted great bodily injury on the victim. (§ 1203, subd. (e)(2), (3).) He contends the trial court erred in finding that this was not an "unusual case" in which a grant of probation would serve the interests of justice despite his presumptive ineligibility for a grant of probation. He asserts he had no prior criminal history and claims there was evidence from which it could reasonably be inferred that he acted in self-defense.
A court has discretion to declare a case "unusual," such that a criminal defendant who is presumptively ineligible for a grant of probation may nonetheless be eligible for a grant of probation. (§ 1203; People v. Nuno (2018) 26 Cal.App.5th 43, 49.) In assessing whether a case is unusual, a court is permitted, but not required, to consider various criteria set forth in California Rules of Court, rule 4.413. (Cal. Rules of Court, rule 4.413; People v. Stuart (2007) 156 Cal.App.4th 165, 178.) The court "need not provide reasons for declining to find a case 'unusual' so as to rebut any presumptive ineligibility for probation." (Nuno, at p. 49.) " 'The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion.' " (Stuart, at p. 178.)
The trial court acted within its discretion when it determined this was not an unusual case. During sentencing, the court opined on the serious nature of the attack and the severe injuries sustained by the victim. It found there was no merit to Konen's version of the incident, including his claim that he feared for his life and needed to defend himself from the victim. Further, the court found that Konen did not understand, appreciate, or feel remorseful about his actions. Given these findings, we conclude the trial court's decision was not so irrational and arbitrary as to constitute an abuse of discretion.
C
Fines and Fees
The trial court did not impose any fines, fees, or penalty assessments during the oral pronouncement of judgment. However, the abstract of judgment reflects the following fines and fees: a restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)); a matching parole revocation restitution fine (Pen. Code, § 1202.45); a court operations assessment of $40 (Pen. Code, § 1465.8); a criminal conviction assessment of $30 (Gov. Code, § 70373); and a criminal justice administration fee of $154 (Gov. Code, § 29550). Because the court imposed no fines, fees, or penalty assessments during the oral pronouncement, Konen contends the fines and fees reflected in the abstract of judgment must be stricken to conform to the oral pronouncement.
"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.) The abstract of judgment is a contemporaneously prepared "clerical record of the conviction and sentence." (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) In general, if the "abstract of judgment is different from the oral pronouncement of judgment, the oral pronouncement controls." (People v. Mullins (2018) 19 Cal.App.5th 594, 612.)
The People concede the oral pronouncement controls over the abstract of judgment, but contend the trial court's failure to impose mandatory fees during the oral pronouncement resulted in an unauthorized sentence, which we may correct for the first time on appeal. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.) They argue the mandatory omitted fees consist of a court operations assessment, a criminal conviction assessment, and a criminal justice administration fee. We agree.
The court operations and criminal conviction assessments are mandatory and not contingent on the defendant's ability to pay. Penal Code section 1465.8 mandates that the trial court impose a $40 court operations assessment for every conviction "[t]o assist in funding court operations." (Pen. Code, § 1465.8, subd. (a).) Government Code section 70373 requires the trial court to impose a $30 criminal conviction assessment on every felony conviction "[t]o ensure and maintain adequate funding for court facilities." (Gov. Code, § 70373, subd. (a)(1).) Because the jury found Konen guilty of one felony charge, the trial court was statutorily required to impose a $40 court operations assessment and a $30 criminal conviction assessment.
The criminal justice administration fee (sometimes known as the jail booking fee) was also mandatory. "Three statutes address defendants' payment of jail booking fees, Government Code sections 29550, 29550.1, and 29550.2. Which section applies to a given defendant depends on which governmental entity has arrested a defendant before transporting him or her to a county jail." (People v. McCullough (2013) 56 Cal.4th 589, 592.) Where, as here, city police conduct the arrest, the county "may impose a fee upon [the] city ... for reimbursement of county expenses incurred with respect to the booking or other processing" of the arrestee. (Gov. Code, § 29550.) The arresting agency, in turn, is entitled to recover the booking fee from the arrestee if he or she is convicted of a criminal offense related to the arrest. (Id., § 29550.1.) The fee is mandatory and, in San Diego County, totals $154. (Ibid. ["A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person ...."]; San Diego County Code Reg. Ord., § 34.103.)
The People did not object to the omission of these fees in the trial court. However, traditional forfeiture rules do not apply when omitted fines, fees, or penalty assessments are mandatory, rather than the product of a discretionary sentencing choice. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [appellate courts may correct omission of mandatory penalties even if the People raise the issue for the first time on appeal]; People v. Smith (2001) 24 Cal.4th 849, 852 ["obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable"].) In accordance with these authorities, we modify the judgment to incorporate the following fees: (1) a court operations assessment of $40 (Pen. Code, § 1465.8); (2) a criminal conviction assessment of $30 (Gov. Code, § 70373), and (3) a criminal justice administration fee of $154 (Gov. Code, § 29550.1).
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Konen argues the trial court impliedly found the imposition of these mandatory fees violated his due process rights when it omitted the fees. However, our court has concluded the imposition of mandatory fees, even as to a defendant who is unable to pay, does not offend due process. (People v. Cota (2020) 45 Cal.App.5th 786, 795; People v. Allen (2019) 41 Cal.App.5th 312, 318.) Therefore, we reject Konen's due process argument. --------
As noted, the trial court also did not impose a restitution fine or matching parole revocation restitution fine during the oral pronouncement. Although the restitution fine is mandatory when a person is convicted of a crime, a trial court may decline to impose the restitution fine if it "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).) Therefore, the Supreme Court has characterized the imposition of a restitution fine as a "discretionary sentencing choice" subject to traditional forfeiture rules. (People v. Tillman (2000) 22 Cal.4th 300, 303.) Any challenge to the omitted restitution fine and matching parole revocation fine is forfeited based on the People's failure to object in the trial court. (Id. at pp. 302-303.)
IV
DISPOSITION
The judgment is affirmed as modified. The trial court shall amend the abstract of judgment to include a court operations assessment of $40 (Pen. Code, § 1465.8) (line 9d of the abstract of judgment), a criminal conviction assessment of $30 (Gov. Code, § 70373) (line 9e of the abstract of judgment), and a criminal justice administration fee of $154 (Gov. Code, § 29550.1) (line 9f of the abstract of judgment), and to delete the $300 restitution fine (Pen. Code, § 1202.4, subd. (b)) and $300 parole revocation restitution fine (Pen. Code, § 1202.45) (line 9a of the abstract of judgment). The trial court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
McCONNELL, P. J. I CONCUR: HALLER, J. Dato, J. concurring.
I fully agree with the result reached in the majority opinion. But as to two of the issues, I arrive at that conclusion based on somewhat different reasoning.
A
The criminal charge in this case was based on an assault with a deadly weapon (a paddle) committed by Paul Konen while he was paddle boarding. Konen allegedly swung his paddle and hit a surfer in response to the surfer's verbal complaint that Konen's reckless behavior in the water caused a collision with the surfer's wife. The wife was permitted to testify that a day earlier, she witnessed a different collision between Konen and another female surfer, and that Konen "ran into her as well without any regard for her safety."
Certainly evidence of prior "bad acts" is admissible to prove a defendant's intent with respect to the charged crime. (Evid. Code, § 1101, subd. (b).) But the circumstances of the two situations—the prior act and the charged crime—must be sufficiently similar to permit the inference that the defendant's intent in both incidents was the same. (See People v. Williams (2018) 23 Cal.App.5th 396, 419-420.) Here, however, defendant's reckless paddle boarding in the prior incident, which caused a collision with a female surfer, casts little if any light on defendant's intent when he swung his paddle and hit the victim in the head. Reckless wave-riding is nothing like swinging a club as a weapon.
That said, there is no reasonable probability that any error in permitting this testimony affected the result. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The alleged error involved one line of testimony—a passing reference. The same witness had already testified about Konen's reckless paddle boarding on the day of the alleged assault. Her testimony about another incident a day earlier added little of significance to her already expressed opinion that Konen was wild and careless around others in the water. The issue in dispute was not his selfishness in causing collisions; it was his intent (or lack thereof) in wielding his paddle.
B
With respect to the imposition of certain statutorily mandated fees, Konen argues that the trial court's failure to impose these fees does not amount to a correctable "unauthorized sentence" because constitutional principles recognized in People v. Dueñas (2019) 30 Cal.App.5th 1157 gave the court authority not to assess them. The majority opinion rejects this argument based on this court's decisions in People v. Cota (2020) 45 Cal.App.5th 786, 795 (Cota) and People v. Allen (2019) 41 Cal.App.5th 312, 318. For the reasons expressed in my separate opinion in Cota, I continue to believe that where the issue is properly raised, defendants are entitled to a hearing at which they can attempt to demonstrate their inability to pay proposed fines and fees and frame an appropriate constitutional argument. (Cota, supra, 45 Cal.App.5th at pp. 795-801 (conc. and dis. opn. of Dato, J.).)
But whatever the viability of Dueñas, no one disputes that a sentence without mandated fees is statutorily unauthorized. And it doesn't become "authorized" based on an alleged constitutional infirmity unless and until the defendant raises the issue and introduces some evidence of his or her inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490; People v. Kopp (2019) 38 Cal.App.5th 47, 96, rev. gr. Nov. 13, 2019, S257844.) In this case, despite the probation report proposing the imposition of mandated fees, including a court operations assessment of $40 (Pen. Code, § 1465.8), a criminal conviction assessment of $30 (Gov. Code, § 70373), and a criminal justice administration fee of $154 (Gov. Code, § 29550), defense counsel said nothing at sentencing about Konen's inability to pay. In my view, absent his raising the issue, a sentence without those fees is "unauthorized" and subject to correction on appeal. (See People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.) I therefore agree with the majority's decision to modify the judgment to add the mandatory fees.
DATO, J.