Opinion
F086312
02-22-2024
THE PEOPLE, Plaintiff and Respondent, v. TREVON HASHEEM MOULTRIE, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 18CR-05127-RF . Steven K. Slocum, Judge.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
A jury convicted Trevon Hasheem Moultrie (appellant) of robbery (Pen. Code, § 211), inflicting corporal injury on a spouse or cohabitant with a prior conviction (§ 273.5, subd. (f)(1)) (corporal injury), criminal threats (§ 422, subd. (a)), and other related offenses and enhancements. The trial court sentenced appellant to 17 years eight months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In our prior opinion (People v. Moultrie (June 15, 2022, F080794) [nonpub. opn.]), we remanded the matter for resentencing in light of newly enacted legislation, including Assembly Bill No. 124 (2021-2022 Reg. Sess.), Assembly Bill No. 518 (20212022 Reg. Sess.), and Senate Bill No. 567 (2021-2022 Reg. Sess.). At resentencing, the trial court applied the newly enacted legislation, but still imposed the same sentence of 17 years eight months.
While the instant appeal was pending, we granted appellant's motion for judicial notice of the appellate record in the prior appeal.
On appeal from resentencing, appellant contends his sentences for corporal injury and criminal threats should have been stayed pursuant to section 654, and that the imposition of certain fines and fees violated his rights to equal protection and due process pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). We conclude appellant was properly sentenced, and that no error occurred. However, we agree with respondent that the abstract of judgment must be amended to correct the amounts imposed for the court operations assessment (§ 1465.8) and conviction assessment (Gov. Code, § 70373). We affirm.
PROCEDURAL BACKGROUND
The Merced County District Attorney's Office filed an information charging appellant with robbery (§ 211; count 1), inflicting corporal injury on a spouse or cohabitant with a prior conviction (§ 273.5, subd. (f)(1); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), residential burglary (§ 459; count 4), and criminal threats (§ 422, subd. (a), count 5). The information further alleged appellant suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, subd. (b)).
The jury found appellant guilty of all counts, except for the burglary count, on which it could not reach a verdict. Following trial, the court granted the People's motions to dismiss the burglary count and the prior prison term allegations. In a bifurcated proceeding, the trial court found true the allegations appellant suffered a prior strike conviction and a prior serious felony conviction.
At appellant's initial sentencing, the trial court set count 1 as the principal term and imposed the upper term of five years, doubled to 10 years for appellant's strike prior (§ 667, subd. (e)(1)). On count 2, the court imposed a consecutive sentence of two years eight months. On count 3, the court stayed the conviction pursuant to section 654. On count 5, the court imposed a concurrent sentence of six years. The court also imposed an additional five-year sentence for appellant's prior serious felony conviction, for a total sentence of 17 years eight months in state prison.
On remand, the trial court considered and applied the changes in sentencing law effectuated by Assembly Bill No. 124, Assembly Bill No. 518, and Senate Bill No. 567. However, the trial court ultimately imposed the identical sentence of 17 years eight months.
FACTUAL BACKGROUND
In People v. Moultrie, supra, F080794, we summarized the underlying facts of appellant's case as follows:
"Appellant and D.V. began dating in April 2016. Throughout their relationship they have lived together intermittently and separated on numerous occasions.
"In April 2017, appellant was convicted for felony domestic violence against D.V. (§ 273.5, subd. (a)). Appellant served time in prison for the conviction and was released approximately three weeks before committing the instant offenses.
"On September 24, 2018, around 2:00 a.m., D.V. called 911 and reported appellant assaulted her and stole her cell phone and purse. Responding officers observed D.V. had multiple lumps and a bloody abrasion on her head and a scrape on her ankle.
"At trial, D.V. testified appellant did not assault her. She claimed she received her injuries during a fight at a nearby park while she was drunk. She also claimed she could not remember much from that day due to her alcohol and marijuana use. Although she testified that she recently ended her relationship with appellant, the People introduced recordings of jail calls indicating they were still involved romantically.
"The People introduced D.V.'s interviews with responding officers from the morning appellant attacked her. During the interviews, D.V. stated that the evening prior appellant left her apartment after she broke up with him. When she went to sleep that evening, she left a window open. She awoke to appellant in her bedroom striking her in the head with an alcohol bottle. Appellant then got on top of D.V. and choked her with his right hand for approximately one minute, then struck her in the head with a closed fist three to four times. At some point during the attack, appellant told D.V., 'I'm going to beat your ass again. You got me fucked up in prison.' D.V. believed appellant was going to kill her. Appellant eventually got off D.V., picked up her purse and cell phone, and left the apartment. The purse contained D.V.'s California identification card, bank cards, $80 in cash, and an employee badge and timecard for her job. D.V. followed appellant out of the apartment, down the stairs, and to the driveway, where she tried to grab her purse and cell phone from appellant. Appellant kicked D.V. in the ribs and pushed her to the ground before leaving. Appellant also told D.V. he was not going to return her belongings and that she was going to lose her job.
"Several days later, appellant gave D.V.'s purse to his cousin and asked her to return it to D.V. D.V. met with the cousin and recovered her purse. She never recovered the cell phone or the contents of her purse.
"Appellant testified in his own defense. He claimed that on the morning in question he was with another woman in a different city and never saw D.V." (People v. Moultrie, supra, F080794.)
DISCUSSION
I. The Trial Court's Ruling that Section 654 did not Apply to the Corporal Injury or Criminal Threats Convictions was Supported by Substantial Evidence.
Appellant contends his sentences for corporal injury and criminal threats must be stayed pursuant to section 654, because the robbery, corporal injury, and criminal threats involved the same victim and were part of the same continuous course of conduct. He further contends he acted with the same motive in all three offenses: to retaliate against D.V. for her role in putting appellant in prison. We disagree. As we explain, the trial court's express and implied findings that section 654 does not apply to appellant's corporal injury and criminal threats convictions were supported by substantial evidence.
A. Background.
At the initial sentencing hearing, appellant's counsel requested the court impose concurrent sentences but did not ask the court to stay any part of his sentence pursuant to section 654. While the trial court stayed count 3 pursuant to section 654, it made no express findings with respect to section 654's applicability as to any count.
Appellant raised the instant section 654 claims in his prior appeal. We declined to address the claims because appellant had to be fully resentenced. However, we directed the trial court to articulate its findings with respect to the applicability of section 654. (People v. Moultrie, supra, F080794.)
During resentencing, the trial court found section 654 does not apply to the corporal injury count, stating:
"I further find that the Penal Code 211 robbery is not 654 to the domestic violence charge because the robbery required the specific intent to take property from the victim by force or fear which is a separate intent and not an act-sorry-and is not an element of the domestic violence charge under Penal Code Section 273.5(f)(1). Further, the domestic violence required injury while the robbery did not. So for these reasons, the crimes of robbery and domestic violence were distinctive."
The trial court did not expressly address the applicability of section 654 to the criminal threats count.
B. Standard of review.
Pursuant to section 654, subdivision (a), "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." Our Supreme Court has "often said that the purpose of section 654 'is to insure that a defendant's punishment will be commensurate with [the defendant's] culpability.'" (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
A substantial evidence standard of review applies to the trial court's determination of the applicability of section 654. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289; People v. Osband (1996) 13 Cal.4th 622, 730.) We review the trial court's factual findings, express or implicit, in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
C. Appellant was properly sentenced.
Preliminarily, we reject appellant's contention the trial court applied an incorrect standard in finding section 654 did not apply to the corporal injury charge. While the trial court noted that robbery and corporal injury have different elements, it ruled section 654 was inapplicable because appellant committed each offense with a "separate intent." As we explain further below, the intent or objective of the perpetrator is central to section 654 analysis. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Appellant also claims the trial court erred in failing to articulate its section 654 findings on the criminal threats count, and he contends the matter must be remanded for the trial court to do so. He notes that in our prior appeal, we directed the trial court to "articulate its findings on the record with respect to the applicability of section 654 as to each count." (People v. Moultrie, supra, F080794.) However, the purpose of this directive was to provide guidance to the trial court and parties on remand, and to assist this court in reviewing any potential future section 654 claims. In any event, in the absence of express factual findings, the reviewing court is charged with determining whether the trial court's "implicit determination" that section 654 does not apply was supported by substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Islas (2012) 210 Cal.App.4th 116, 129.) Accordingly, remand on this basis is unwarranted.
We also observe that appellant did not object to the trial court's section 654 findings at resentencing.
1. The offenses involved separate acts.
Under the plain language of the statute, "[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.) The determination of whether a defendant committed a single physical act "depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (People v. Corpening (2016) 2 Cal.5th 307, 313.)" 'If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction.'" (People v. Beamon (1973) 8 Cal.3d 625, 637.)
Here, each of appellant's convictions was based on separate criminal acts. Appellant committed corporal injury when he attacked D.V. in her apartment, striking her in the head with an alcohol bottle, strangling her, and punching her with a closed fist. He committed criminal threats when he threatened to "beat [her] ass again," causing D.V. to be in fear for her life. He committed robbery when he took D.V.'s purse and cell phone and prevented D.V. from retrieving her property by kicking her in the ribs and pushing her down. We therefore conclude there was substantial evidence appellant's convictions involved separate and distinct criminal acts, as none of these acts separately completed the actus reus for any of the other offenses.
2. The offenses involved separate criminal objectives.
Even though appellant's convictions were based on separate acts, section 654 may still apply, depending on appellant's intents and objectives. In Neal v. State of California, supra, 55 Cal.2d at p. 19, our high court held: "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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." Relying on this principle, appellant asserts his sole intent and objective was to retaliate against D.V. for her perceived role in sending him to prison.
We agree appellant was motivated by retaliation. The evidence also suggests appellant was angry at D.V. for ending their relationship. However, appellant's overall motive to commit these offenses is not relevant for purposes of section 654 analysis. Rather, we must determine whether appellant "entertained multiple criminal objectives which were independent of and not merely incidental to each other." (People v. Beamon, supra, 8 Cal.3d at p. 639, italics added.) If so, "he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (Ibid.)
We conclude substantial evidence supports the trial court's express and implied findings appellant acted with a separate criminal objective as to each offense, which was to inflict a different type of harm. In inflicting corporal injury, appellant's objective was to inflict physical harm. In making criminal threats, his objective was to inflict mental and emotional harm. In committing robbery, his objective was to inflict financial harm and cause difficulties for D.V. in her employment.
Appellant contends he committed corporal injury and criminal threats with the same objective, because he threatened to assault D.V. while he was assaulting her. However, "mentally or emotionally terrorizing the victim by means of threats is an objective separate from the intent to cause ... physical pain." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1047.) In Mejia, the defendant was convicted of, inter alia, torture (§ 206) and criminal threats. (Id. at pp. 1046-1047.) In denying the defendant's section 654 claim, the court reasoned that even though both offenses were part of a "campaign to terrorize" the victim, "a reasonable trier of fact could conclude that the criminal threats were in furtherance of a separate criminal objective, even if, in part, the threats were intended to 'break' or 'beat' the victim down emotionally." (Ibid.) Similarly, here, the evidence supported the conclusion the criminal threats and corporal injury had separate criminal objectives to inflict different types of harm, even though both acts were part of his more general interest in retaliation.
Appellant also contends his acts constituting corporal injury and criminal threats inside of the apartment supported the "force or fear" element of the robbery and were therefore part of the same course of conduct with the same criminal intent. In other words, appellant argues these other acts were "incidental to the robbery." (See People v. Mitchell (2016) 4 Cal.App.5th 349, 354.)
We disagree. "[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654." (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) For example, in People v. Coleman (1989) 48 Cal.3d 112, the defendant entered a residence, held a pointed letter opener to the house sitter's throat and directed her to help him locate valuables. Before leaving, he ordered the house sitter to lie on the ground and stabbed her in the back. (Id. at pp. 127-128.) The high court rejected the defendant's section 654 claim he could not be sentenced for both the assault and the robbery, reasoning: "There is ample evidence ... that defendant's intent and objective in assaulting [the house sitter] ... was separate from, rather than incidental to, his intent and objective in committing the robbery. Prior to the assault, defendant had essentially completed the robbery by compelling [the house sitter] to assist and not interfere with his gathering the valuables and preparing for flight.... The trial court could properly conclude that defendant committed the assault with the intent and objective of preventing the victim from sounding the alarm . and that this intent and this objective were separate from, not incidental to, the robbery." (Id. at pp. 162-163.)
The instant case warrants a similar result. While the use of "force or fear" is an element of the crime of robbery, the robbery did not occur until after the corporal injury and criminal threats offenses had been completed. Appellant took D.V.'s property after he had finished threatening and battering her inside of her apartment. He did not use force again until he was confronted by D.V. in the driveway. The acts of kicking and pushing D.V. to the ground satisfied the force or fear element of robbery because they were done "in resisting attempts to regain the property." (People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) Therefore, the trial court reasonably concluded appellant's acts of violence inside of the apartment were not done to facilitate the robbery, and that appellant acted with separate criminal objectives.
To conclude, we hold the trial court's express and implicit findings that the offenses were based on separate acts and separate criminal objectives was supported by substantial evidence. Given the nature of appellant's conduct and the distinct types of harm inflicted on the victim, this result also comports with the purpose of section 654 of ensuring punishment is commensurate with culpability. (People v. Latimer, supra, 5 Cal.4th at p. 1211.) We therefore conclude the trial court was not required to apply section 654, and these claims lack merit.
II. The Imposition of Fines and Fees did not Violate Appellant's Constitutional Rights.
Appellant contends the trial court's imposition of a $5,300 restitution fine, a $160 court operations assessment (§ 1465.8), and a $120 conviction assessment (Gov. Code, § 70373) violated his constitutional rights. Based on the court's holding in Duenas, he contends imposition of the fine without consideration of his ability to pay violated his rights to due process and equal protection. We reject appellant's arguments. We hold Duenas is distinguishable from appellant's case, and that his constitutional rights were not violated.
A. Background.
At appellant's initial sentencing, the trial court imposed a $5,100 restitution fine, a $120 court operations assessment, and a $90 conviction assessment.
While the initial appeal was pending, appellant filed a motion requesting the trial court reduce his restitution fine based on his alleged inability to pay. The trial court denied the motion because it no longer had jurisdiction over appellant's case.
During the resentencing hearing, the trial court stated it was imposing a $5,300 restitution fine, a $160 court operations assessment, and a $120 conviction assessment. However, the amended abstract of judgment lists fines and fees in the same amounts imposed during the initial sentencing: a $5,100 restitution fine, a $120 court operations assessment, and a $90 conviction assessment.
B. Applicable Fines and Fees.
Section 1202.4, subdivision (b)(1), requires the trial court to impose a restitution fine of not less than $300 and not more than $10,000 in every case where a person is convicted of a felony unless the court finds "compelling and extraordinary" reasons for not doing so. (§ 1202.4, subd. (c).) A defendant's inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine," but is not a "compelling and extraordinary reason" not to impose the fine. (§ 1202.4, subd. (c).) The defendant bears the burden of demonstrating his or her inability to pay. (§ 1202.4, subd. (d).)
Section 1465.8, subdivision (a)(1), states a trial court shall impose an assessment of $40 "on every conviction for a criminal offense." Similarly, Government Code section 70373, subdivision (a)(1), states a trial court shall impose a $30 assessment "on every conviction for a criminal offense."
C. Appellant's Due Process Rights were not Violated.
Because appellant's due process claim is based on Duenas, we begin our analysis by discussing the factual circumstances at issue in that case. There, the defendant was an indigent mother of two who suffered from cerebral palsy and subsisted on government aid. (Duenas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her driver's license was suspended because she was unable to pay juvenile citations. (Id. at p. 1161.) Over the next few years, she was convicted of several misdemeanor offenses for driving with a suspended license. (Ibid.) She continued to offend because she could not recover her license due to the outstanding criminal assessments and fines, which increased with each conviction. (Ibid.) In each case, she was given the option to pay mandatory fines and fees, which she was unable to do, or go to jail. (Ibid.) She served jail time in each case, but still faced outstanding debt for other fines and fees, which accumulated with each conviction. (Ibid.) Duenas characterized this as "the cascading consequences of imposing fines and assessments that [the] defendant [could not] pay," based on a "series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Id. at pp. 1163-1164.)
Appellant acknowledges he did not object to the imposition of fines or fees at resentencing, but respondent does not contend the claim is forfeited. Therefore, we do not consider whether appellant forfeited this claim by failing to object below.
Duenas concluded the repeated imposition of fines and assessments caused ongoing unintended punitive consequences which, under principles of due process, were "fundamentally unfair" for an indigent defendant. (Duenas, supra, 30 Cal.App.5th at p. 1168.) The court reasoned due process requires the trial court to conduct an ability to pay hearing before it imposes a restitution fine pursuant to section 1202.4, subdivision (b). (Duenas, supra, 30 Cal.App.5th at p. 1164.) It reached this conclusion even though section 1202.4, subdivision (c) bars consideration of a defendant's ability to pay unless the court is considering imposing the fine over the statutory minimum. (Duenas, supra, 30 Cal.App.5th at p. 1164 .) It also held due process requires an ability to pay hearing before imposing a court operations assessment (§ 1465.8), or a conviction assessment (Gov. Code, § 70373). (Duenas, supra, 30 Cal.App.5th at p. 1164.)
We decline to extend Duenas's holding beyond its unique facts. In People v. Lowery, the defendants were convicted of multiple counts of armed robbery, and the court imposed various fines, fees, and assessments. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1048-1049 (Lowery).) On appeal, the Lowery court rejected a due process challenge based on Duenas, noting the "unique concerns addressed in Duenas" were inapplicable. (Lowery, supra, 43 Cal.App.5th at p. 1056.) The court explained that the defendants in Lowery were not facing "ongoing unintended punitive consequences" from the imposition of fines, fees, or assessments, and therefore did not establish how they suffered a violation of a fundamental liberty interest. (Ibid.) They had been incarcerated because they were convicted of intentional criminal acts, not because of their alleged indigency. (Ibid.) Because they were not subjected to unintended punitive consequences, Lowery held it was not fundamentally unfair to impose fines, fees, or assessments without determining their ability to pay. (Id. at pp. 1056-1057.)
Here, as in Lowery, the unique concerns addressed in Duenas were not present. Appellant has not established a violation of a fundamental liberty interest. His incarceration was the result of his intentional criminal acts, not due to "cascading consequences" stemming from prior criminal fines and assessments. (Duenas, supra, 30 Cal.App.5th at p. 1163.) Appellant could have avoided his present conviction regardless of his financial circumstances. Thus, it was not fundamentally unfair for the trial court to impose the restitution fine, court operations assessment, and conviction assessment without determining appellant's ability to pay, and therefore his due process claim lacks merit.
D. Appellant's right to equal protection was not violated.
Appellant does not articulate the basis for his equal protection claim but appears to rely on Duenas. We have already concluded Duenas is distinguishable from the present matter and we will not apply it here. In any event, Duenas based its holding on due process grounds, and not on equal protection. (Duenas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) We therefore reject appellant's equal protection claim, and we conclude appellant's constitutional rights were not violated by the imposition of the restitution fine.
III. The Abstract of Judgment must be Amended to Reflect the Correct Amounts for the Court Operations Assessment and Conviction Assessment.
During oral pronouncement of judgment, the resentencing court imposed a $160 court operations assessment and a $120 conviction assessment. However, the amended abstract of judgment lists the amounts imposed as $120 and $90, respectively.
We agree with respondent that the amounts imposed during the oral pronouncement of judgment were correct. The $40 court operations assessment and $30 conviction assessment must be imposed once as to each count, including stayed counts. (People v. Sencion (2012) 211 Cal.App.4th 480, 484.) Appellant was found guilty of four counts. Accordingly, the amended abstract of judgment shall be amended to reflect a court operations assessment of $160 and conviction assessment of $120.
Respondent also notes that the resentencing court imposed a $5,300 restitution fine, which is $200 higher than imposed at his initial sentencing. The parties concede, and we agree, that it was error to impose a higher restitution fine at resentencing. (See People v. Hanson (2000) 23 Cal.4th 355, 367.) However, because the amended abstract of judgment lists the restitution fine as $5,100, we need take no further action to correct this error.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting a court operations assessment (§ 1465.8) of $160 and a conviction assessment (Gov. Code, § 70373) of $120, and to forward a copy of the amended abstract of judgment to the appropriate entities. In all other respects, the judgment is affirmed.
WE CONCUR: DETJEN, J. SNAUFFER, J.