Opinion
A151362
10-23-2019
THE PEOPLE, Plaintiff and Respondent, v. HECTOR A. MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16SF005299A)
Hector Martinez appeals after a jury convicted him of possessing methamphetamine for sale and transporting methamphetamine. He argues the trial court committed Batson/Wheeler error in sustaining a peremptory challenge to a single juror. He also contends the trial court erroneously imposed fines and fees absent a determination of his ability to pay. We affirm.
BACKGROUND
In November 2016, the San Mateo County District Attorney filed an amended information charging Martinez with felony possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one), felony transportation of methamphetamine (Health & Saf. Code, § 11379. subd. (a); count two), misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a); count three), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364; count four). The information alleged as to counts one and two that Martinez suffered a prior strike conviction and served a prior prison term. The jury found him guilty of the misdemeanors but was unable to reach a verdict on the two felonies, and the court declared a mistrial as to those counts. Following a retrial in January 2017, the jury found Martinez guilty of counts one and two. In a bifurcated proceeding, the court found true the allegations on the strike and prison prior. The court sentenced Martinez to four years in state prison. The trial court imposed $580 in fines, fees, and assessments—a $300 state restitution fine (Pen. Code, § 1202.4, subd. (b)), four separate $40 court operations assessments (Pen. Code, § 1465.8); and four separate $30 criminal conviction assessments (Gov. Code, § 70373). This appeal followed.
DISCUSSION
A. Batson/Wheeler
Martinez contends the prosecutor improperly exercised a peremptory challenge against an African-American juror, D.B., on the basis of his race. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); See Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson).)
The applicable legal principles we use to evaluate a Batson/Wheeler motion are well settled. "First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].' " (People v. Manibusan (2013) 58 Cal.4th 40, 75.)
" ' "We review a trial court's determination regarding the sufficiency of a prosecutor's justification for exercising peremptory challenges ' "with great restraint." ' [Citation]. We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" ' " (People v. O'Malley (2016) 62 Cal.4th 944, 975.) "Thus, in reviewing a trial court's reasoned determination that a prosecutor's reasons for striking a juror are sincere, we typically defer to the trial court and consider only 'whether substantial evidence supports the trial court's conclusions.' " (People v. Banks (2014) 59 Cal.4th 1113, 1146, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
" '[O]ne form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination' is a comparison of the treatment of an excused juror with other similarly situated jurors. [Citation.] '[E]vidence of comparative juror analysis must be considered . . . even for the first time on appeal if relied upon by the defendant [if] the record is adequate to permit the urged comparisons.' [Citation.] But when, as here, a defendant 'wait[s] until appeal to argue comparative juror analysis,' our 'review is necessarily circumscribed,' and we 'need not consider responses by stricken panelists or seated jurors other than those identified by the defendant.' " (People v. Smith (2018) 4 Cal.5th 1134, 1147-1148).
D.B. is a resident of Daly City who grew up in East Palo Alto. In voir dire, he recounted an "array of experiences with police officers," which were "all over the board." When he was asked by the court about the scope of his encounters, he replied: "I'm an African-American male. I've had numerous encounters [with] police officers. Some good. Some bad. So countless, I would say throughout my life span." He recalled one "vivid incident[]" that took place in East Palo Alto when he was in high school. One morning before school, he went to his friend's house to wake him up, and when he walked outside, ATF officers surrounded the block and one pointed a gun at his head.
He said he would be able to set aside his negative experiences and give the People and Martinez an equally fair shake. He considered himself a "fairly optimistic person," and did not let such negative experiences "deter [his] logical decision-making." He added, "I believe the law is there for a reason. And in terms of following the law, I'm not here to make a visceral decision. So it's based upon the instructions that are given to me and the law. So I believe I can follow that." The prosecutor asked him whether his experiences with police in general were "good or bad, or . . . 50/50." D.B. was unable to give an overall estimate and explained, "[T]here have been multiple experiences that were good, some were bad. But that has not tainted . . . my view of the law . . . I respect police officers. [¶] I feel like anyone that . . . has to protect and serve in any capacity, that's an honorable thing to do, and it's very difficult. So that has not changed my view of how I view police officers or how I approach police officers in any way." He could hear officer testimony and weigh it like anyone else.
Recalling a topic that had been asked of prior prospective jurors, D.B. noted he had contested multiple traffic tickets and was sometimes successful. It was difficult for him to answer the prosecutor's question about whether he felt he was treated fairly by law enforcement. While he felt the judicial process considered his circumstances objectively in court, he did not know whether the police officers "were objective or not," explaining "[s]omeone pulling me over for something and giving you a ticket out of some law that you may not be aware of, it's very difficult to discern whether that was fair or not." He could not say officers treated him respectfully when his treatment occasionally differed from what others received. He concluded, "Throughout those experiences, there was a law broken, and I was given the citation for the law, and then I complied. . . . [F]rom my perspective, I tried to be as logical and calm as possible throughout those experiences because it saves my life, you know. . . . I think it would be good for you to just comply."
D.B. also discussed "experiences with . . . community members being . . . addicted . . . to methamphetamine." In East Palo Alto, he saw people "behave oddly" whom he believed were on drugs. He also stated, "I have seen family members who were affected by drugs. I'm not sure particularly what types of drugs. [¶] . . . [M]y older brother, he's out on the streets . . . . [H]e was first addicted to alcohol and it, sort of, led to other . . . unknown things at this point." When his brother was using, they were both college students at the same university and lived together. D.B. moved away from him to focus on his studies. He further explained, "[W]hen I moved away that's when he started acting weird. He would act as the people that I had mentioned earlier in the neighborhood. So he would come back and forth. He didn't have a place after . . . going through that. He moved in with me, but I had no tolerance for any of that while he was staying with me." Despite these experiences, D.B. said he would be able to weigh the evidence and judge the case based on the evidence.
The prosecution did not challenge D.B. for cause but excused him with a peremptory challenge.
After he was excused, defense counsel raised a Batson/Wheeler challenge. The court found a prima facie case and required the prosecutor to explain the reasons for the challenge. The prosecutor explained "the race-neutral reasons why [he] excused D.B." as follows: "[F]irst I'll state that it was a very close call for me whether or not to excuse him. Because on the face of his answers, it seems that he would be neutral. [¶] . . . . [¶] However, that being said, he had fought not just one traffic ticket, like some of the other jurors, but he had fought multiple traffic tickets. . . . [¶] He did feel like he was treated fairly by the judicial system. However, he could not state that he was treated fairly by the police. . . . [¶] And I think that to say that he did not feel like there was some bias in the police encounters that he has had in his life is actually inaccurate because he said several times that it was a mixed bag. [¶] Some encounters were good, some were bad. But he couldn't actually place a percentage on how many of those encounters were bad or good. So it left me with very little information to make a judgment as to how he would view police officers' testimony overall based on his personal encounters. [¶] More importantly than that . . . and probably . . . heavier in terms of my [decision] to excuse him, was the fact that his brother was involved in narcotics use. Somebody close to him, somebody that had lived with him at some point. They went to school together . . . [¶] And although he tried to isolate himself as best as he could. . . , I think that based on all of the things that he said as a totality, there was enough of a doubt there for me to excuse him for those reasons, race-neutral reasons."
The trial court did not think the prosecutor's exercise of a challenge "was motivated out of some racial bias or some intent to systematically exclude people of color from the jury." It explained: "I think that it's a fair point that the experiences—[D.B. has] had quite a few encounters with police . . . it's a very relatively high number of encounters for a citizen to have over the period of time that was described. And I think it's a fair point that those encounters were mixed. [¶] And I agree that it may be whether or not there is a connection between that and some inability to be fair in the case and to give fair weight to the officer's testimony as opposed to automatically discount it is something that was appropriate to probe, and it was a little unclear whether or not that might be a problem."
The court noted that "part of the appropriate use of a peremptory challenge is that each side has the ability to excuse jurors on a peremptory basis, if there's a nervousness, a genuine good faith nervousness, about whether they will, in fact, get a fair shake from a juror." In considering the "main issue" of whether the prosecutor's decision was a good faith challenge arising from "some genuine concern about how this juror would treat the evidence," the court found no indication that the prosecutor exercised the challenge "for any other ulterior or extraneous reasons other than what [counsel] expressed." Accordingly, the court concluded it had no basis to find the peremptory challenge improper or unlawful.
The record supports the trial court's finding that the prosecution's challenge of D.B. was not motivated by race. D.B. had "countless" encounters with police, which were "all over the board" and some of which were "bad." He successfully contested multiple traffic tickets and questioned whether police officers selectively enforced certain laws against him. He could not say he was treated fairly, objectively, or respectfully by law enforcement as a result of his experiences. D.B. also stated that his brother was involved with drugs and suggested that his brother's drug use drove D.B. to move away from him so he could focus on school. These were specific, race-neutral bases on which the prosecution could exercise a peremptory challenge. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1124-1125 [prospective juror's negative experience with law enforcement can be a valid basis for exclusion]; cf. People v. Reed (2018) 4 Cal.5th 989, 1001 [a relative's negative experiences with law enforcement as a race-neutral hypothetical reason for a strike that dispels any inference of discriminatory intent]; cf. People v. Stanley (2006) 39 Cal.4th 913, 940, [finding sympathy for defendant a valid race-neutral reason for peremptory challenge].)
Martinez contends a comparative juror analysis demonstrates that race was a considerable or noteworthy part of the real reason D.B. was challenged. He notes the prosecutor did not challenge Juror No. 14 (Juror 14), a panelist with a similar background as D.B., who was not African-American.
Juror 14 was a self-employed cookbook author and mother of three children between 7 and 15 years old. She told the court that within the past two years her brother-in-law served time for methamphetamine. She explained: "I don't think I'd have a hard time being fair. It's just my last name happens to be this person's last name also. So if you looked through the County records, he served time for meth. It's just a fact." When the court asked whether she could "exercise self-discipline" and screen out the fact that someone within her "relatively immediate family" was involved with methamphetamine, she responded, "I do think that. I just wanted to let you know." When defense counsel asked how close attention she paid to her brother-in-law's legal process, she said she was told "hardly anything [by her husband] except for the base facts that you can just find by looking someone up in the judicial system." Along with the little information her husband and mother-in-law provided, she learned what she knew about her brother-in-law's case on her own. She said there was nothing about her past that would prevent her from being a fair, impartial, or objective juror. The prosecutor asked no follow-up questions. She was seated on the jury.
D.B. and Juror 14 were not similarly situated. While both had relatives involved with methamphetamine, D.B.'s situation was qualitatively different from Juror 14's. Examination of Juror 14 revealed no personal or direct interaction with her brother-in-law while he was using drugs or facing charges. Her relationship with her brother-in-law was much more remote than D.B and his brother. They lived and attended school together and D.B. saw his brother's decline first-hand. Moreover, in contrast to D.B., there is no evidence Juror 14 had the scope of encounters with police and "mixed bag" experiences with law enforcement. Nor was there any indication that Juror 14 ever questioned whether officers enforced traffic laws fairly against her. We understand that a comparative juror analysis does not require the jurors we compare to be duplicates, as Martinez states, but they "must be materially similar in the respects significant to the prosecutor's stated basis for the challenge." (People v. DeHoyos (2013) 57 Cal.4th 79, 107.) D.B. and Juror 14 were not.
Martinez also argues that the prosecutor's election to not question Juror 14 about her brother-in-law's drug offenses "is telling evidence of discrimination." Not necessarily. The prosecutor explained that her concern focused on how close D.B. was to his family member involved with the drugs and how that experience would affect his view of the evidence. Further questioning of Juror 14 would have had no impact. Juror 14's responses to the court's questions revealed she was not close to her brother-in-law and knew little of his case. With that background of the relationship between Juror 14 and her brother-in-law, it was reasonable that the prosecutor had no follow-up questions.
Martinez also claims "the court improperly focus[ed] on systematic exclusion of people of color . . . , rather than assessing whether a single strike was motivated in substantial part by race." When it ruled, the court stated, "I don't think the exercise of challenge was motivated out of some racial bias or some intent to systemically exclude people of color from the jury." But that was not the court's complete analysis. The court also addressed the prosecutor's proffered reasons for excusing D.B. In making its ruling the court took into account whether racial bias against D.B. was a motivating factor for the exercise of the peremptory challenge. It had the proper focus.
B. Ability to Pay Fines , Fees , and Assessments
In supplemental briefing, Martinez argues the $300 restitution fine under Penal Code section 1202.4, the $160 court operation fees under Penal Code section 1465.8, and the $120 in criminal conviction assessments under Government Code section 70373 imposed by the trial court violate due process, citing People v. Dueñas (2018) 30 Cal.App.5th 1157 (Dueñas). Martinez asks us to vacate the fines, fees and assessments imposed by the trial court, or in the alternative, remand for a hearing on his ability to pay those amounts.
In Dueñas, the defendant, a homeless probationer who suffered from cerebral palsy and was unable to work, was convicted of her fourth offense of driving with a suspended license. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) At sentencing, she objected that she did not have the ability to pay fees and fines, produced undisputed evidence establishing her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The court struck some fees, but imposed others it concluded were mandatory. (Id. at p. 1163.) The appellate court concluded "due process of law 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" and that while "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." (Id. at p. 1164.)
We need not consider Martinez's Dueñas claim here, however, because he never objected to imposition of the fines and assessments at issue in the trial court. The issue has thus been forfeited and he cannot challenge them before this court. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [Dueñas challenge forfeited by failure to object to the fines and assessments at sentencing]; People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to various fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 590-591 (McCullough) [appellant forfeited appellate claim challenging booking fee under Government Code section 29550.2, subdivision (a) where no objection was made at trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 (Avila) [rejecting argument that, since the defendant did not have the ability to pay, imposition of a restitution fine under Penal Code section 1202.4 was an unauthorized sentence not subject to the forfeiture rule].)
Martinez argues the forfeiture rule does not apply here because "Dueñas established a new constitutional principle that could not reasonably have been anticipated at the time of trial." We disagree. The court in Frandsen explained, "Dueñas was foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied 'the Griffin-Antazo-Bearden analysis,' which flowed from Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660 [Citation.]. The Dueñas opinion likewise observed ' "[t]he principle that a punitive award must be considered in light of the defendant's financial condition is ancient." [Citation.] The Magna Carta prohibited civil sanctions that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood. [Citation.]' [¶] Dueñas applied law that was old, not new." (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155; accord People v. Bipialaka (2019) 34 Cal.App.5th 455.) Moreover, the grounds for challenge asserted in Dueñas to statutory fees and fines was readily foreseeable under California authorities. (See Avila, supra, 46 Cal.4th 680; McCullough, supra, 59 Cal.4th 589.)
Martinez further contends his Dueñas challenge is not forfeited by failing to object where, as here, he was sentenced prior to Dueñas and the trial court imposed only the statutory minimum restitution fine under Penal Code section 1202.4, subdivision (b). He cites four appellate decisions that have rejected forfeiture in such circumstances. He further adds that forfeiture has applied only in cases where defendants have failed to object to restitution fines that exceeded the statutory minimum given Penal Code 1202.4's express authorization for the trial court to consider a defendant's inability to pay in such circumstances.
Penal Code section 1202.4, subdivision (b), requires a court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every case where a person is convicted of a felony unless it finds compelling and extraordinary reasons not to do so. (Pen. Code, § 1202.4, subd. (b).)
These cases are: People v. Santos (2019) 38 Cal.App.5th 923, 931-933; People v. Jones (2019) 36 Cal.App.5th 1028, 1033; People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson); and People v. Castellano (2019) 33 Cal.App.5th 485, 489.
Under Penal Code section 1202.4, subdivision (c), a defendant's inability to pay is not a compelling and extraordinary reason to refuse to impose the fine, but inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $ 300]." (Pen. Code, § 1202.4, subd. (c).)
We recognize several courts, including the ones cited by Martinez, have factored in Penal Code section 1202.4's express authorization to the trial court to consider ability to pay restitution fines that exceed the statutory minimum, and how a defendant's failure to challenge a fine above the statutory minimum imperils a later challenge to that fine on appeal. However, the amount of a restitution fine does not determine whether there was a forfeiture of the issue, especially where the fine is challenged on non-statutory grounds. Even though Penal Code section 1202.4 makes no express provision for a defendant to challenge or a court to consider ability to pay a fine at the statutory minimum, Martinez has cited to no authority that foreclosed or rendered futile the non-statutory, due process challenge he now asserts for the first time on appeal. Accordingly, we, too, "stand by the traditional and prudential virtue of requiring parties to raise an issue in the trial court if they would like appellate review of that issue." (Frandsen, supra, 33 Cal.App.5th at p. 1155.) Here, Martinez never raised a due process argument to the trial court as to the fines, fees, and assessments imposed on him, nor did he ever express a concern about his ability to pay those amounts or proffer any evidence they would impose an undue hardship. Under the traditional rule, his claim on appeal is forfeited.
See Johnson, supra, 35 Cal.App.5th at p. 138, fn. 5 ["The distinction between minimum and above minimum restitution fines has consequences for the applicability of forfeiture doctrine."].
In any event, even if we were to assume Martinez presents a cognizable claim, we can infer that, unlike the probationer in Dueñas, Martinez has the ability to pay the $580 in fees, fines, and assessments imposed on him. Martinez will have the opportunity to earn prison wages over the course of his four-year sentence. (See People v. Hennessy (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's prison wages].) To the extent debt remains following his release, it is not reasonable to conclude he would be unable to pay that balance. Martinez was 21 years old at the time of sentencing, unmarried, and had no children. As a teenager, he had worked in a kitchen, and he reported he was in good health. Any reasonable court would have still imposed the fees even if it had separately considered ability to pay. (See People v. Staley (1992) 10 Cal.App.4th 782, 783 [" '[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed."].)
Also, unlike in Dueñas, Martinez provides no indication the $580 at issue will saddle him with "anything like the inescapable, government-imposed debt-trap" faced by the defendant in that case. (See Johnson, supra, 35 Cal.App.5th at p. 139.)
We need not consider whether the Eighth Amendment's excessive fines clause is the proper framework under which to analyze the restitution fine, rather than due process principles. To the extent Martinez joins respondent's Eighth Amendment arguments on appeal, they were never raised in the trial court and are not properly before us.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.