Opinion
E070696
11-05-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MARTIN, Defendant and Appellant.
Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI18000591) OPINION APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill, Judge. Affirmed. Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Anthony Martin was charged by information with driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a), count 1), receiving a stolen vehicle (Pen. Code, § 496d, count 2), and evading an officer in willful and wanton disregard for safety (Veh. Code, § 2800.2, subd. (a), count 3). Counts 1 and 2 were dismissed on the People's motion. A jury found defendant guilty of count 3. A trial court initially decided to place him on probation; however, he elected to be sentenced to state prison instead. The court then sentenced him to the low term of 16 months in state prison, with credit for time served of 256 days.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends: (1) the court abused its discretion in denying his motion to reduce his conviction to a misdemeanor; and (2) pursuant to People v Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court's imposition of a $40 court operations fee, a $30 court facilities assessment, and a $300 restitution fine violated his right to due process, absent a hearing on his ability to pay. We affirm.
FACTUAL BACKGROUND
On the morning of February 27, 2018, a police officer was on patrol and observed a Jeep weaving back and forth between lanes on the highway. He pulled up to the lane adjacent to the Jeep to see if the driver was distracted by being on a cell phone and saw that defendant was driving the car. Defendant was not on a cell phone, and he looked directly at the officer. Since the officer did not see a distraction, he thought defendant was either sleepy or impaired by drugs or alcohol. The officer positioned his car behind defendant's car and activated his lights to initiate a traffic stop. Defendant exited an off-ramp, but instead of pulling over, accelerated and went through the stop sign at the bottom of the ramp. He crossed the double yellow lines and went onto the wrong side of the street. He continued driving toward oncoming traffic. The officer followed him, on the right side of the road. Defendant led the officer on a high-speed chase, reaching speeds of 75 miles an hour on the street. He sped through several more stop signs, and drove up a curb, across the sidewalk, and through a park area. At one point, the officer stopped the pursuit for safety reasons, when defendant started driving along the railroad tracks. The officer called additional units to assist him. Another officer found the Jeep a short time later. The door was left wide open, and no one was inside. The officer found two receipts in the Jeep. They were from Steak 'n Shake (fast food) locations in Florida and Arkansas.
Another officer subsequently located defendant walking on Needles Highway, waving his arms as cars passed by, as if he was trying to flag one down. As the officer approached him, defendant lay down on the ground. The officer pulled his patrol car over and got out. Defendant yelled to him, "Please place me in handcuffs before your partners get here." He was breathing heavily and asked if he could sit in the patrol car. The officer received information that defendant was a suspect in a vehicle pursuit and arrested him.
The total duration of the car chase was a little over two minutes. The police officer testified at trial that defendant committed 17 traffic violations during the pursuit.
ANALYSIS
I. The Court Did Not Abuse its Discretion in Denying Defendant's Motion
Defendant contends that the trial court abused its discretion in denying his motion to reduce his felony conviction to a misdemeanor under section 17, subdivision (b) (hereinafter, section 17(b)). He specifically claims the court abused its discretion because it "mistakenly believed that the jury had made a determination regarding whether or not the charge is a felony or a misdemeanor." He further argues that the court made a legal error when finding it did not have the discretion to reduce the conviction to a misdemeanor pursuant to section 17(b). We find no abuse of discretion.
A. Relevant Background
Defendant filed a motion pursuant to section 17(b)(3) to reduce his felony conviction to a misdemeanor. He also argued that the court should exercise its discretion and impose probation, asserting that he was only 22 years old. In support of probation, defendant asserted numerous factors under California Rules of Court, rule 4.414 (criteria affecting probation), including that his crime resulted from a two-minute evasion, and there were no injuries. He also asserted factors under California Rules of Court, rule 4.423 (circumstances in mitigation), including that his contact was minimal compared to the "average length of an evading case" and the circumstances giving rise to the incident were unlikely to recur, since it happened during a cross country trip. Additionally, he contended that, based on the circumstances leading up to the incident, his lack of an adult criminal record, and the negative effect the sentencing would have on his life, the court should determine that "the conduct in this matter [was] in fact misdemeanor conduct and not felony conduct." Therefore, he argued the court should exercise its discretion under section 17(b)(3) and reduce the charge to a misdemeanor and impose the terms of probation listed in the probation report.
Prior to sentencing, the court heard the motion. The prosecutor argued that the court should not grant probation. He noted that the court and jury heard the testimony that defendant had committed 17 Vehicle Code violations on the city streets. Furthermore, there was monetary loss to the victim with regard to the vehicle, which was stolen out of Florida. Moreover, defendant was the driver of the vehicle, and there was sophistication and planning in driving the vehicle from Florida to California. The prosecutor also noted that defendant had prior felony convictions out of Florida for carrying a concealed firearm and attempted burglary of a dwelling, his convictions were numerous and increasing in severity, and he was on probation when the incident occurred.
With regard to reducing the conviction to a misdemeanor, the prosecutor argued that the jury was given instructions concerning finding defendant guilty of Vehicle Code section 2800.2 (a felony) or section 2800.1 (a misdemeanor), and it found him guilty of the greater offense. Thus, the prosecutor argued against reducing the crime to a misdemeanor. Defense counsel contended that, even though the jury convicted defendant of the felony, it was in the court's discretion to reduce it, pursuant to section 17(b).
The court observed that defendant did have a criminal record out of Florida and acknowledged that it did not know whether those felony convictions would qualify as felonies in California. However, it was concerned because the Florida conviction for attempted burglary of a dwelling appeared to be similar to attempted residential burglary, which would be a strike in California. Nonetheless, the court said it was not going to find defendant's criminal history so egregious that it made him ineligible for probation in this case. It then stated: "The Court believes that the proper sentence in this case is probation for [defendant]. The Court is going to decline to reduce this [pursuant] to 17(b) based on the fact that the jury made the determination based on the evidence they heard, and the Court's not going to disturb the jury's verdict in this case. [¶] The jury determined that this was felony conduct and the Court does not believe that that's an unreasonable verdict considering the evidence that was presented to the jury and because the Court doesn't believe it's unreasonable or unjustified by the evidence, the Court is not going to disturb that conviction. The Court is going to place the defendant on felony probation."
The court then stated that its inclination was to release defendant, but it was concerned about what would happen to him once he was released, since there was some indication he had health issues and did not have family or resources in California. Defense counsel said she could reach out to a social worker and see if he/she would assist in perhaps getting defendant "placement" and then possibly getting the case transferred to Florida, since that is where he resided and had family. Counsel asked the court to place the matter on second call so she could make that contact. The court took a recess, then came back on the record. It noted its discussion with defense counsel off the record regarding research she had done and a talk she had with defendant. Defense counsel then stated that defendant "has elected to be sentenced to state prison as opposed to being released on probation." Therefore, the court announced that, pursuant to California Rules of Court, rule 4.412 and a jury finding and conviction in this matter, it was denying probation. The court stated that, considering it was about to give defendant probation, it would sentence him to the low term of 16 months in state prison for his felony conviction of Vehicle Code section 2800.2, subdivision (a).
B. Relevant Law
"The Legislature has classified most crimes as either a felony or a misdemeanor, by explicitly labeling the crime as such, or by the punishment prescribed." (People v. Park (2013) 56 Cal.4th 782, 789 (Park).) "There is, however, a special class of crimes involving conduct that varies widely in its level of seriousness. Such crimes, commonly referred to as 'wobbler[s]' [citation], are chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor; that is, they are punishable either by a term in state prison or by imprisonment in county jail and/or by a fine." (Park, at p. 789.) The jury convicted defendant of violating Vehicle Code section 2800.2, subdivision (a), which provides: "If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year." Vehicle Code section 2800.2 is thus a wobbler.
"When a fact finder has found the defendant guilty of . . . a wobbler that was not charged as a misdemeanor, the procedures set forth in section 17, subdivision (b) (hereafter section 17(b)) govern the court's exercise of discretion to classify the crime as a misdemeanor." (Park, supra, 56 Cal.4th at p. 790.) As relevant here, section 17(b)(3) provides that "[w]hen a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail . . . it is a misdemeanor for all purposes under the following circumstances: [¶] . . . (3) When the court grants probation to a defendant [without imposition of sentence] and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (Italics added.) In other words, section 17(b)(3) empowers the trial court to declare a wobbler offense a misdemeanor, in that situation, upon application of the defendant. (§ 17, subd. (b)(3).)
The decision to reduce a wobbler offense rests with the trial court's discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) The burden falls upon the defendant to demonstrate that the trial court's decision was irrational or arbitrary. (Ibid.) We presume the trial court acts to implement legitimate sentencing objectives. (Ibid.) The reviewing court may not substitute its views for those of the trial court. (Id. at p. 978.)
Factors that the court should consider in its exercise of discretion regarding section 17(b) offenses include " 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' " (Alvarez, supra, 14 Cal.4th at p. 978.)
C. There Was No Abuse of Discretion
The jury found defendant guilty of felony evading an officer in willful disregard for safety, in violation of Vehicle Code section 2800.2. Defendant has failed to show that the court abused its discretion in denying his motion to reduce his conviction to a misdemeanor. Misdemeanor evasion of an officer requires that a person "willfully flee[] or otherwise attempt[] to elude" an officer. (Veh. Code, § 2800.1.) Felony evasion of an officer requires that a person drive in "willful or wanton disregard for the safety of persons or property." (Veh. Code, § 2800.2.) Thus, "[t]he only distinction between the two crimes is that in committing the greater offense the defendant drives the pursued vehicle 'in a willful or wanton disregard for the safety of persons or property.' " (Springfield, supra, 13 Cal.App.4th at pp. 1679-1680.)
The jury was instructed that it could find defendant guilty of Vehicle Code section 2800.1, which is a lesser included offense of section 2800.2. "The only distinction between the two crimes is that in committing the greater offense the defendant drives the pursued vehicle 'in a willful or wanton disregard for the safety of persons or property.'" (People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680 (Springfield).) --------
In denying the 17(b) motion, the court stated: "The jury determined that this was felony conduct and the Court does not believe that that's an unreasonable verdict considering the evidence that was presented to the jury." The court added that because it did not believe the conviction was "unreasonable or unjustified by the evidence," it was "not going to disturb that conviction." In other words, the court heard and considered the evidence and believed the felony conviction was justified. The evidence undisputedly showed that defendant drove in willful disregard for the safety of others, as he committed 17 Vehicle Code violations in just over two minutes. Such violations included speeding, failing to obey stop signs, driving on the wrong side of the road toward oncoming traffic, and driving up a curb, on the sidewalk, and across a park. The court's finding that the conviction was justified by the evidence indicates that it considered the nature and circumstances of the offense. The nature and circumstances of the offense were proper considerations in the court's exercise of discretion. (Alvarez, supra, 14 Cal.4th at p. 978.)
Defendant claims the court based its denial of his 17(b) motion on impermissible factors. He asserts that "[t]he impermissible factors in this case were that the trial judge believed that the jury had decided whether the charge was a misdemeanor or a felony and that the trial judge believed that he did not have the discretion to reduce the charge pursuant to Penal Code section 17, subdivision (b)." Defendant's claims are unsubstantiated. The jury did not decide "whether the charge was a misdemeanor or a felony." Defendant was charged with evading an officer with wanton disregard for the safety of others, under Vehicle Code section 2800.2. The jury was instructed that it could find him guilty of the lesser included offense of Vehicle Code section 2800.1. The jury found him guilty of a violation of the greater offense, which required a finding that he drove with willful or wanton disregard, including the commission of three or more traffic violations. By statutory definition, the jury found him guilty of felony conduct. (Veh. Code, § 2800.2; Springfield, supra, 13 Cal.App.4th at pp. 1679-1680.) However, there is no indication in the record that the court believed it did not have the discretion to reduce this conviction under section 17(b). Rather, the record reflects that the court considered the nature and circumstances of the offense in light of the evidence, properly exercised its discretion, and denied defendant's motion. (See ante.)
Therefore, we cannot say the court's decision not to reduce defendant's conviction to a misdemeanor was irrational or arbitrary. The court did not abuse its discretion.
II. No Remand is Necessary
Defendant challenges the court's imposition at sentencing of a $40 court operations assessment (Pen. Code, § 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $300 restitution fine (Pen. Code, § 1202.4). Relying on the recent appellate decision in Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that the imposition of the fine and assessments without a hearing establishing his ability to pay violated his due process rights. (We will call this Dueñas error.) He requests this court to vacate the order imposing the fine and assessments, or in the alternative, remand the matter to give the People the opportunity to prove his ability to pay. No remand is required.
A. Defendant Did Not Forfeit His Claim
The People argue defendant forfeited this issue on appeal because he failed to raise it in the trial court. Defendant concedes he did not object on these grounds in the trial court. However, he argues that he has not forfeited his claim, since an objection would have been futile, given the state of the law at the time of sentencing, and because it raises a question of constitutional law. We agree with defendant.
The court in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) explained the issue as follows: "At the time [defendant] was sentenced, Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay. Indeed, as discussed, in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant's inability to pay. When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Id., at p. 489.) Pursuant to the reasoning in Castellano, we conclude defendant did not forfeit his claim. (See also, People v. Jones (2019) 36 Cal.App.5th 1028 (Jones).)
B. Any Error Was Harmless
No remand is required since any Dueñas error was harmless. Dueñas, supra, 30 Cal.App.5th 1157 involved a homeless probationer who suffered from cerebral palsy and was unable to work. She was married with two young children, and her family received public assistance. (Id., at pp. 1160-1161.) Her driver's license was suspended when she could not pay some juvenile citations as a teenager. (Id. at p. 1161.) "She was then convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case was given the impossible choice whether to 'pay[]' mandatory fees and fines—which she could not do, because of her poverty—or go to jail. [Citation.] After serving jail time in the first three of these cases, she still faced outstanding debt, which mounted with each conviction." (People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).)
Upon her fourth conviction for driving with a suspended license, Dueñas was placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) She asked the court to set a hearing to determine her ability to pay the attorney fees and court fees she had been assessed. (Id. at p. 1162.) The court held an ability to pay hearing and concluded that she lacked the ability to pay the attorney fees, and it waived them "on the basis of her indigence." (Id. at p. 1163.) However, the court stated that the $30 court facilities assessment (Govt. Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8) "were both mandatory regardless of Dueñas's inability to pay them." (Dueñas, at p. 1163.)
Dueñas appealed and argued that "laws imposing fines and fees on people too poor to pay punish the poor for their poverty." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The appellate court agreed, concluding that due process "requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Ibid.) The could also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
We first note that the facts in the instant case bear no similarity to the unique factual circumstances presented in Dueñas. The Dueñas court observed that the record in that case "illustrate[d] the cascading consequences of imposing fines and assessments that a defendant cannot pay." (Dueñas, supra, 30 Cal.App.5th at p. 1163.) It also noted that the case did not " 'stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Id. at p. 1164.) There were no such similar circumstances here.
In any event, any error in failing to conduct an ability to pay hearing was harmless. "A ' "very limited class" ' of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.' [Citations.] Dueñas did not address whether Dueñas error requires an automatic reversal." (Jones, supra, 36 Cal.App.5th at p. 1035.) "We therefore consider whether the error here was harmless beyond a reasonable doubt." (Ibid.; see Chapman v. California (1967) 386 U.S. 18, 24.)
Here, defendant claims he is indigent, implying that he is unable to pay the subject fees and fine that were imposed. In support of this claim, he points only to the fact that he had appointed counsel at trial and on appeal. However, just because he was appointed counsel does not mean he was indigent or lacked the ability to pay. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine."].)
We further observe that at the sentencing hearing, defense counsel mentioned the victim was requesting $2,500 in restitution for the stolen vehicle. As there was some dispute over the amount of the restitution, the prosecutor suggested the court refer the matter to the probation department for a supplemental report. Defense counsel agreed and added that there may be an issue as to whether restitution was appropriate, given that defendant was not convicted of taking the car. Significantly, she did not object to the $2,500 restitution amount because of any inability to pay.
Moreover, we note that defendant will have the ability to earn prison wages while incarcerated. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1487 [ability to pay includes a defendant's ability to obtain prison wages]; see also Jones, supra, 36 Cal.App.5th at p. 1035.) We recognize that defendant's sentence is not particularly lengthy; however, if he does not earn enough in prison wages, there is no reason to believe he will not be able to earn enough to pay whatever is left. In other words, the idea that he cannot afford to pay the modest financial burden of $370 ordered is untenable.
In sum, even if we were to assume defendant suffered a due process violation when the court imposed the subject fine and assessments without taking his ability to pay into account, there is no reason to doubt defendant has, or will have, the ability to pay $370. (See Johnson, supra, 35 Cal.App.5th at pp. 139-140.) Accordingly, we conclude the Duenas error was harmless. (Jones, supra, 36 Cal.App.5th at p. 1035; see Johnson, supra, 35 Cal.App.5th at pp. 139-140.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.