Opinion
A156522
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD MCCULLOUGH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. Nos. 18CR001761, 18CR002719)
Edward McCullough (defendant) appeals from a judgment entered after the trial court convicted him of various domestic violence-related offenses and sentenced him to a total of seven years and four months in prison. He contends the court erred by: (1) imposing multiple punishment for two of his convictions in violation of Penal Code section 654 ; and (2) imposing various fines and fees without an ability to pay hearing. We modify the sentence as set forth below and affirm the judgment in all other respects.
All further, undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An information was filed in case 18CR001761 alleging defendant committed the following offenses between May 15 and 30, 2018: corporal injury to a cohabitant with a special allegation that he had a prior domestic violence conviction (§ 273.5, subds. (a) & (f)); misdemeanor vandalism (§ 594, subd. (b)(2)); misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)); and misdemeanor assault and battery (§ 242).
Thereafter, an information was filed in case 18CR002719 alleging defendant committed the following offenses on August 16, 2018: criminal threats while released on bail (§§ 422, 12022.1); dissuading a witness by force or threat while released on bail (§§ 136.1, subd. (c)(1), 12022.1); false imprisonment by violence while released on bail (§§ 236, 12022.1); misdemeanor contempt of court (§ 166, subd. (c)(1)); and misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)). The information further alleged defendant committed the following offenses on August 13, 2018: corporal injury to a cohabitant with special allegations that he had a prior domestic violence conviction and that he committed the offense while released on bail (§§ 273.5, subds. (a) & (f), 12022.1); assault with force likely to cause great bodily injury, with a special allegation that he committed the offense while released on bail (§§ 245, subd. (a)(4)), 12022.1); misdemeanor false imprisonment (§ 236); misdemeanor contempt of court (§ 166, subd. (c)(1)); and misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)).
Defendant waived his right to a jury trial in both cases, and the trial court held a bench trial on all charges after granting the People's request to consolidate the cases. The court found defendant guilty of all charges and found true all special allegations, except that it found defendant not guilty of the aggravated assault alleged to have occurred on August 13. The court sentenced defendant to an aggregate term of seven years and four months in prison.
Because defendant only raises claims related to one event on August 16, we will summarize the facts relating to that event only. C.M. and defendant began dating in November 2017. C.M. moved into defendant's house and was dependent on him for housing, finances, and transportation. Defendant, who is one foot taller than C.M., intimidated her by, among other things, breaking her cell phone so she could not contact her friends. He was also possessive of her and did not let her leave the house. He drank alcohol and used methamphetamine.
On August 16, defendant had a court appearance that C.M. attended with him. When they returned home, defendant drank whiskey and became angry at C.M., blaming her for his being late to court that morning. He yelled at C.M. all day, and multiple neighbors told defendant to stop screaming. Defendant responded by screaming and cussing at his neighbors. C.M. wanted to call 911 but was afraid of defendant and did not have a phone.
That evening, police officers knocked on the door to defendant's house and could hear defendant screaming and C.M. talking inside. Defendant yelled at the officers, saying, " 'Fuck you,' " and " 'You break the door, I'm going to sue you.' " C.M. wanted to open the door and talk to the officers but was afraid of defendant, who said he would "knock [her] out" if she tried to open the door. Defendant then told C.M. to go hide in the bathroom and be quiet, and said he would leave her and "knock her out" if she did not comply. C.M. ran and hid in the bedroom closet and was crying and scared when the officers got inside and coaxed her out of her hiding place.
C.M. was initially afraid of talking to the officers because she was worried defendant would see the police report and know what she said to them. She eventually told them that she would have called 911 but did not have a phone, and that she wanted to open the door for the officers but was too afraid to do so. She said she "wanted out of the situation" with defendant because she was afraid.
DISCUSSION
I. Sentencing - Section 654
Defendant contends the trial court erred by imposing concurrent sentences on his convictions for dissuading a witness with force or threat (§ 136.1, subd. (c)(1)) and criminal threats (§ 422) without staying the sentence on the latter conviction under section 654. The Attorney General (respondent) concedes—and we agree—the court erred. The parties, however, disagree on the remedy, with defendant asserting we should modify the judgment by staying the sentence on the criminal threats conviction, and respondent arguing the matter should be remanded for resentencing. As explained below, we will modify the judgment.
Respondent also concedes—and we agree—that defendant did not forfeit this issue by not objecting below because a trial court's section 654 error constitutes an unauthorized sentence that may be challenged for the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.)
The seven-year-four-month prison term the trial court imposed consisted of the principal middle term of four years for one count of inflicting corporal injury to a cohabitant, a consecutive 16 months (one-third the middle term) for a second count of inflicting corporal injury to a cohabitant, and two years for the enhancement that defendant committed the second offense while released on bail. In addition, the court imposed three concurrent convictions—the middle term of two years for criminal threats, the lower term of two years for dissuading a witness with force or threat, and the middle term of two years for false imprisonment.
The abstract of judgment erroneously states the trial court imposed the lower term of one year for dissuading a witness with force or threat, when in fact the lower term for that offense is two years. (§ 136.1, subd. (c)(1) [the punishment for this offense is two, three, or four years].) We order that this clerical error be corrected.
Section 654 bars multiple punishment for convictions arising out of an indivisible course of conduct committed pursuant to a single criminal intent or objective. (People v. Correa (2012) 54 Cal.4th 331, 336.) The statute's purpose is to ensure the defendant's punishment will be commensurate with his or her liability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The test for determining whether section 654 prohibits multiple punishment is well established: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor." (Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on another ground by People v. Correa, supra, 54 Cal.4th at p. 334.) Regardless of the temporal proximity of his offenses, so long as each offense was independent of and not merely incidental to the other, a defendant may be punished separately even though violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Here, the count for dissuading a witness with threat or force was based on defendant's threat that he would "knock [C.M.] out" if she answered the door to let the officers in. The criminal threats count was based on that same threat. Because both counts were based on defendant's one act and objective, section 654 bars multiple punishment.
Where a trial court has committed section 654 error, the appellate court may correct the sentence by modifying the judgment to stay the sentence that should have been stayed. (§ 1260 [appellate court may reverse, affirm, or modify a judgment or may remand the cause for further proceedings "as may be just under the circumstances"].) Respondent asserts we should remand the matter for resentencing, but the cases on which it relies deals with situations in which remand is necessary because there are "changed circumstances" as a result of the appellate court's decision, such as a reversal of a conviction. (E.g., People v. Navarro (2007) 40 Cal.4th 668, 681 ; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 ["upon remand for resentencing after the reversal of one or more . . . counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed," italics added].) There are no such changed circumstances here.
We rely on People v. Alford (2010) 180 Cal.App.4th 1463 (Alford), in modifying the judgment instead. There, the Court of Appeal declined to remand the matter for resentencing based on section 654 error, stating that the "futility and expense" of having "a new sentencing hearing that will not change [the defendant's] actual prison time . . . militates against" remand. (Alford, supra, 180 Cal.App.4th at p. 1473.) "Instead, . . . we will exercise our authority to modify the judgment. (§ 1260.)" (Alford, supra, 180 Cal.App.4th at p. 1473.) Here, staying a concurrent sentence will consume court resources without promoting the interests of justice, and will not change defendant's prison time. Because we see no reason to remand the matter, we will modify the judgment to reflect that defendant's concurrent sentence for criminal threats is stayed.
II. Ability to Pay Hearing
The trial court imposed a $500 domestic violence fine (§ 1203.097, subd. (a)(5)), $500 in battered women's shelter fines (§ 1203.097, subd. (a)(1)(A), $520 in court operations assessments (§ 1465.8), $390 in criminal conviction assessments (Gov. Code, § 70373), and a $600 restitution fine (§ 1202.4, subd. (b)). Defense counsel asked the court to "note my objection" to the fines and fees. The court responded that defendant could "work . . . off" the fines and fees, and added: "And if you want to submit additional documentation with regard to his ability to pay I'll reconsider the Court Security Fee and Criminal Conviction Assessment." Counsel responded, "All right." There is nothing in the record indicating defendant provided any documents or information.
Defendant contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the "imposition of the statutory court security fees and conviction assessments violated [his] right to due process and should be reversed. Given [defendant's] inability to pay his restitution fines . . . in the near future, those fines should be suspended." We disagree. In Dueñas, the defendant, "an indigent and homeless mother of young children" who suffered from cerebral palsy, dropped out of high school due to her illness, was not working, received public assistance, and had been unable to pay prior citations and fees, was convicted of driving with a suspended license. (Id. at pp. 1160-1163.) At sentencing, she argued she did not have the ability to pay fees and fines, produced evidence of her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The trial court struck some fees but imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. (Id. at pp. 1162, 1163.)
The Court of Appeal concluded that "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 . . . section 1465.8 and Government Code section 70373" and that while 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.)
Here, even assuming error under Dueñas, any error was harmless beyond a reasonable doubt. There is nothing in the record indicating defendant, like the defendant in Dueñas, has a history of being unable to pay court assessments or that he has limited assets or income that he needs to devote to vital child-care needs. Instead, the record shows defendant was 47 years old at the time of sentencing, was a high school graduate, had received training in welding and auto mechanics, and had an employment history "[f]or most of his adult life" as a "maintenance person" for hotels and resorts or as a painter for local businesses. He was a homeowner, and although he indicated his house was in foreclosure, he said he "would be able to put his house up for collateral, and would do so to post bail." He also said he was hoping to fix the house "to 'sell it for top dollar.' " He stopped working in 2017 after he underwent surgery and received treatment for kidney cancer, but he said his medical scan in June 2017 was " 'clean' and did not show any more cancer." He did not point to any circumstances, such as a disability, to cast doubt on his ability to obtain the funds for payment in the future.
The substantive holding in Dueñas has been strongly criticized. (People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review granted Nov. 26, 2019, S258946.) Because we conclude that any error under Dueñas was harmless, we need not determine whether the decision is correct.
Moreover, a defendant's ability to pay does not require existing employment or cash on hand. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) Rather, it can be based on a person's future ability to earn, including his ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Here, defendant will be serving time in prison and has the capacity to earn both during that time and after his release. Based on the record, any reasonable trial court would have imposed the assessment and fines even if it had considered defendant's ability to pay under Dueñas. Accordingly, we conclude any error was harmless beyond a reasonable doubt.
DISPOSITION
The two-year concurrent sentence for criminal threats (§ 422) is stayed. The clerical error on the abstract that indicates that the lower term for the conviction for dissuading a witness by threat or force (§ 136.1, subd. (c)(1)) is one year shall be corrected to state that it is two years. The trial court is directed to forward to the Department of Corrections and Rehabilitation a new abstract of judgment that reflects the above two modifications. As so modified, the judgment is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Fujisaki, J.