Opinion
D071410
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. KURENE MULIPOLA, Defendant and Appellant.
Thien Huong Tran, 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, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on March 13, 2018, be modified as follows:
1. On page 9, in the first full sentence, replace "People" with "San Diego County Sheriff's Department (Sheriff's Department)."
2. On page 11, in subheading (c), replace "People's" with "Sheriff's Department's."
3. On page 11, in the first full paragraph, replace "People" with "Sheriff's Department."
4. On page 14, in footnote 12, first sentence, replace "People" with "Sheriff's Department."
5. On page 16, in footnote 15, first sentence, replace "People" with "Sheriff's Department."
There is no change in the judgment.
AARON, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD265137) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Michael T. Smyth, Joseph P. Brannigan, Judges. Conditionally reversed in part; affirmed in part. Thien Huong Tran, 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, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
The People charged Kurene Mulipola with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count 1) and battery with serious bodily injury (§ 243, subd. (d)) (count 2). With respect to count 1, the People alleged that Mulipola inflicted great bodily injury (§ 12022.7, subd. (a)). The People further alleged that Mulipola previously suffered two prison priors (§§ 667.5, subd. (b), 668), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a strike prior (§§ 667, subd. (b), 1170.12, 668).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
Before trial, Mulipola filed two Pitchess motions seeking discovery of specified relevant evidence contained in two deputy sheriffs' personnel files. In his motions, Mulipola explained that one of the deputies filed a report stating that the two deputies had interviewed Mulipola after the incident underlying the charged offenses, and indicated in the report that Mulipola had confessed to committing the crimes. In supporting declarations, Mulipola denied that he had made any statements to the deputies regarding the incident. Mulipola sought discovery related to any evidence of the deputies' dishonesty and/or their filing false police reports. The trial court denied both Pitchess motions.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Upon an adequate showing, a criminal defendant may compel the discovery of evidence in a law enforcement officer's personnel file that is relevant to his or her defense. (See ibid.; Evid. Code, § 1043.)
A jury found Mulipola guilty of the charged offenses and found the great bodily injury enhancement true. Mulipola admitted the prior conviction allegations. The trial court sentenced Mulipola to an aggregate term of twelve years in prison, and imposed a restitution fine in the amount of $10,000.
On appeal, Mulipola contends that the trial court erred in denying his second Pitchess motion. Mulipola also claims that the court erred in imposing the restitution fine and, in the alternative, contends that trial counsel provided ineffective assistance in failing to object to the imposition of the fine.
We conclude that the trial court erred in denying Mulipola's second Pitchess motion. We further conclude that Mulipola forfeited his claim that the trial court erred in imposing the restitution fine, and that he has not established his related ineffective assistance of counsel claim. Accordingly, we conditionally reverse the judgment and remand the matter for further proceedings related to Mulipola's second Pitchess motion. In all other respects, we affirm the judgment.
We follow the California Supreme Court's decision in People v. Gaines (2009) 46 Cal.4th 172 (Gaines), with respect to the proper remedy, given the procedural posture in this case.
II.
FACTUAL BACKGROUND
Mulipola, Marcos Felix, and H.L. were cellmates in the San Diego County jail. One afternoon, a jail deputy saw Mulipola and Felix drag an apparently unconscious H.L. out of their cell and place him on the floor just outside the cell. H.L. was bleeding profusely from his face. Mulipola and Felix returned to their cell and began fighting.
We use the victim's initials to attempt to protect his personal privacy interests. (See Cal. Rules of Court, rule 8.90.)
Deputies responded to the scene and restrained Mulipola and Felix. Jail medical staff began to provide medical assistance to H.L, who was subsequently transported to the hospital. Among other injuries, H.L. suffered several broken ribs, a lacerated spleen, a skull fracture, and bleeding on the brain.
Deputy Joseph Portillo interviewed Mulipola. Mulipola admitted that he and Felix had attacked H.L. Mulipola claimed to have struck H.L. twice in the stomach. He did not know how many times Felix hit H.L.
Video surveillance footage depicts Mulipola and Felix entering their cell at around the time that H.L. entered the cell. Soon thereafter, Mulipola and Felix can be seen dragging H.L. out of the cell.
III.
DISCUSSION
A. The trial court erred in denying Mulipola's second Pitchess motion
Mulipola claims that the trial court erred in denying his second Pitchess motion.
1. Governing law and standard of review
a. Overview of Pitchess motions
In " 'Pitchess . . . [, supra,] 11 Cal.3d 531 . . . , [the California Supreme Court] recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge. "In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045." ' " (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710 (Johnson).)
"Evidence Code sections 1043 and 1045 establish the procedures. The party seeking discovery must file a written motion with service on the governmental agency having custody of the records sought. [Citation.] The motion must describe the type of records or information sought and include an affidavit showing good cause for the discovery, which explains the materiality of the information to the subject of the pending litigation and states on reasonable belief that the governmental agency has the records or information." (Johnson, supra, 61 Cal.4th at p. 710.) If a defendant demonstrates good cause, the trial court conducts an "in camera court review of the records and subsequent disclosure to the defendant of information 'relevant to the subject matter involved in the pending litigation.' " (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048 (Uybungco).)
b. The "good cause" requirement
A party's burden in demonstrating "good cause" in connection with a Pitchess motion is "not high." (Johnson, supra, 61 Cal.4th at p. 720.) The Johnson court described that showing as follows:
" 'A showing of good cause is measured by "relatively relaxed standards" that serve to "insure the production" for trial court review of "all potentially relevant documents." (Ibid.)' [Citation.] The defense only needs to demonstrate ' "a logical link between the defense proposed and the pending charge" and describe with some
specificity "how the discovery being sought would support such a defense or how it would impeach the officer's version of events." ' [Citation], quoting Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 [(Warrick)]; see Warrick, at pp. 1024-1025 [the defense proposed may, 'depending on the circumstances of the case, . . . consist of a denial of the facts asserted in the police report'].)" (Ibid.)
In demonstrating good cause, a party must also " ' "establish[ ] a plausible factual foundation" ' for the defense asserted. [Citation.] The defendant 'must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.' [Citation.] In doing so, the defendant need not point to any corroboration for the defendant's account, and is also not required to 'present a credible or believable factual account of, or a motive for, police misconduct.' [Citation.] Rather, all that is required is the presentation of a scenario 'that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.' [Citation.]" (Uybungco, supra, 163 Cal.App.4th at pp. 1048-1049.)
c. The standard of review
"We review a trial court's ruling on a Pitchess motion for abuse of discretion." (Uybungco, supra, 163 Cal.App.4th at p. 1049.)
2. Factual and procedural background
a. Mulipola's first Pitchess motion
After the trial court held a preliminary hearing in the case and held Mulipola to answer on all of the charges and allegations, Mulipola filed a Pitchess motion.
In an accompanying brief, Mulipola provided the following factual background. One afternoon while he was being held as an inmate at the San Diego County Central Jail, there was an altercation in his module. Deputies responded and found inmate H.L. lying on the floor, just outside of a cell that Mulipola, H.L., and Felix shared. H.L. was bleeding from his head and moaning. Mulipola and Felix were engaged in a physical fight. After restraining Felix and Mulipola, deputies were able to obtain a video of the module at the time of the incident. The video shows Mulipola, Felix, and H.L. entering their cell. After approximately a minute, Felix and Mulipola can be seen dragging H.L. out of the cell and leaving him on the floor.
Mulipola also stated the following:
"In a report[,] Deputy Joseph Portilllo stated that he, along with Deputy Tyson Kresher interviewed Mr. Mulipola. Deputy Portillo wrote that he read Mr. Mulipola his Miranda[] rights and Mr. Mulipola agreed to speak to the deputies. Deputy Portillo wrote that Mr. Mulipola stated that he and his cellmate, 'the Mexican,' [i.e., Felix] assaulted [H.L.] According to Deputy Portillo[,] Mr. Mulipola stated that he and Mr. Felix waited for [H.L.] to go into the cell. Once he did, he and Mr. Felix started beating [H.L.] Deputy Portillo wrote that Mr. Mulipola stated that 'the Blacks' in the module had approached him and stated they were going to assault [H.L.] because [H.L.] continue to eat food out of a trashcan in the module and that 'they did not like that.' According to Deputy Portillo[,] Mr. Mulipola responded to 'the Blacks' that he 'ran the car for the others' and that he would take care of it. Deputy Portillo did not video or audio record the interview in any way. Deputy Kresher who, according to Deputy Portillo, was also present did not write a report."
(Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
Mulipola "denie[d] ever being interviewed by the deputies, let alone giving a confession, contrary to Deputy Portillo's report." In support of this statement, Mulipola cited to his counsel's declaration, which counsel lodged with the motion. Defense counsel's declaration states in relevant part:
"10. KURENE MULIPOLA contends that:
"11. He never provided a statement to any deputies regarding the incident on November 29, 2015.
"12. He never made such a statement as is being attributed to him, and denies talking to Deputy Portillo or Deputy Kresher wherein, according to a report by Deputy Portillo, Mr. Mulipola took responsibility for the assault."
In his brief, Mulipola states that he sought the following discovery:
"Any evidence of, or complaints of: (1) false statements in police reports, (2) fabrication of witness testimony in police reports, (3) failure to include percipient witness statements in police reports, (4) false testimony, (5) any other evidence of, or complaints of dishonesty, by San Diego Sheriff Deputy Portillo . . . and San Diego Sheriff Deputy Tyson Kresher . . . ."
Defense counsel attached Deputy Portillo's report to the motion, as well as the reports of two other officers who responded to the incident.
After the People filed an opposition, and the trial court (Judge Brannigan) held a hearing, the court denied the motion.
b. Mulipola's second Pitchess motion
Attorney James McMahon filed Mulipola's first Pitchess motion and filed a declaration in support of the motion. A second attorney, Attorney Kate Tesch, filed Mulipola's second motion and also filed a declaration in support of the second motion.
Aside from formatting differences, Mulipola's brief in support of his second Pitchess motion appears to be identical to his brief in support of his first motion. However, defense counsel supported Mulipola's second Pitchess motion with a declaration that differed from defense counsel's declaration offered in support of his first motion. Defense counsel states in her declaration:
One confusing aspect of the record is that Mulipola's brief in support of his second Pitchess motion cited to Attorney McMahon's declaration offered in support of Mulipola's first Pitchess motion, and the brief in support of Mulipola's second motion made no mention of Attorney Tesch's declaration offered in support of that motion.
"10. KURENE MULIPOLA contends that:
"11. He did not assault [H.L.] on November 29, 2015.
"12. He did not batter [H.L.] on November 29, 2015.
"13. Marcos Felix or another third party assaulted and battered [H.L.] on November 29, 2015.
" 14. Mr. Mulipola did not provide a statement of confession to Deputy Portillo or Kresher regarding the alleged assault and battery of [H.L.]
"15. Mr. Mulipola did not take responsibility for the alleged assault and battery upon [H.L.]
" 16. Mr. Mulipola did not provide details to Deputy Portillo or Deputy Kresher of the events leading up to the alleged assault and battery, nor did he provide any details of the alleged incident itself.
" 17. The report written by Deputy Portillo describing a confession by Mr. Mulipola is false, fabricated, and dishonest. This constitutes officer misconduct.
"18. When Deputy Portillo wrote his report in this case, he was lying, making false statements, and fabricating witness statements. This constitutes officer misconduct.
" 19. If Deputy Portillo were to testify consistent with his written report, his testimony would be false and dishonest. This would constitute officer misconduct.
"20. If Deputy Kresher were to testify consistent with Deputy Portillo's written report, his testimony would be false and dishonest. This would constitute officer misconduct.
"21. Neither Deputy Portillo nor Deputy Kresher audio or video recorded the alleged statement of confession by Mr. Mulipola. This constitutes officer misconduct.
"22. Deputy Portillo did not audio or video record the alleged statement of confession because the statement never occurred.
"23. Deputy Kresher did not audio or video record the alleged statement of confession because the statement never occurred.
"24. Deputy Kresher did not memorialize the alleged statement of confession in a written report because the statement never occurred.
"25. There is no audio or video recording of the alleged statement in confession; the only evidence that it ever occurred is the witness testimony of Deputies Portillo and Kresher. Thus[,] their credibility is essential to the defense this case."
Defense counsel reattached the relevant police reports, including Deputy Portillo's report.
c. The People's opposition to Mulipola's second Pitchess motion
In their opposition to Mulipola's second Pitchess motion, among other arguments, the People reiterated an argument presented in their opposition to Mulipola's first Pitchess motion, namely, that Mulipola had failed to present "a specific allegation of [officer] misconduct accompanied by a complete and alternative factual scenario to support that allegation."
d. The trial court's ruling
After hearing argument, the trial court (Judge Smyth) denied the motion. The court reasoned in relevant part:
"Warrick, which I guess could fairly be called one of the big cases you look at and rely upon, even in that case, the expanded rights, not to make it easier to get in the records, in that case they didn't make bald assertions that simply denied the charging offense.
"In that case[,] they provide an alternative version that was plausible, if not believable. You know, it was plausible, but there's an actual alternative explanation for what happened that, if one believed it, you could see the officer would either be wrong or dishonest.
"Well, here I don't think you have it. I don't think it sets forth. He does deny -- through your declaration, through his not guilty plea, he denies the elements of the crime, the assault of the victim and what happened to the victim, but I think that's a different issue today.
"While denying he made the statements to Deputy Portillo that the deputy attributes to the defendant during their interview, he doesn't deny he was interviewed by Portillo. And he does not provide an alternative version of what that interview — what took place in that interview or what Deputy Portillo said."
"So I think I do find that it's insufficient."
Judge Smyth further explained that he was going to "deny the Pitchess motion with respect to both officers," given the insufficiency of defense counsel's declaration.
3. Application
The parties' briefs identify the critical issue on appeal, namely, whether the trial court abused its discretion in determining that Mulipola failed to present a specific plausible factual scenario of officer misconduct sufficient to demonstrate good cause for the requested discovery. In his opening brief, Mulipola argues that he presented a specific plausible factual scenario of alleged officer misconduct to the trial court. Specifically, Mulipola notes that he denied having made "any sort of confession, or admitting any involvement or knowledge of the incident to Deputies Portillo and Kresher," and that Deputy Portillo's report allegedly falsely states that Mulipola made such statements.
In response to this argument, the People contend that Mulipola failed to carry his burden of showing plausibility because his Pitchess motion "rel[ied] solely upon the implausible theory that no interview took place." The People argue that it is "pure fantasy to think that no police interview with [Mulipola] took place," given the undisputed fact that Mulipola was seen on a jailhouse video assisting another suspect drag the victim out of a jail cell after the assault.
The People reassert this reading of the defense counsel's declarations throughout their brief. (See, e.g., "[Mulipola] claimed that because there was no interview . . ."; "[i]t is implausible that no interview took place"; "[b]y relying solely upon the implausible theory that no interview took place.")
In his reply brief, Mulipola argues that "no where in defense counsel's declaration did [Mulipola] deny ever being questioned by Deputies Portillo and Kresher." Given the record, Mulipola has the better argument.
In the substantive portion of the declaration offered in support of Mulipola's second Pitchess motion, Attorney Tesch stated, "Mr. Mulipola did not provide a statement of confession to Deputy Portillo or Kresher regarding the assault and battery of [H.L.]" (Italics added.) In the declaration offered in support of Mulipola's first Pitchess motion, Attorney McMahon stated, "[Mulipola] never provided a statement to any deputies regarding the incident . . . ." (Italics added.) In neither declaration, does defense counsel state "no interview took place," as the People contend. Indeed, in denying Mulipola's second Pitchess motion, the trial court expressly stated, "[Mulipola] doesn't deny he was interviewed by Portillo." (Italics added.) In light of this record, we reject the People's argument that defense counsel's declarations offered in support of the Pitchess motions asserted that the deputies did not attempt to interview Mulipola, and that Mulipola therefore failed to present a plausible factual scenario of officer misconduct.
We acknowledge that, in his briefs in support of his Pitchess motions, Mulipola stated, "Specifically, Mr. Mulipola denies ever being interviewed by the deputies, let alone giving a confession, contrary to Deputy Portillo's report. (J. McMahon Declaration, at ¶ 9,10,11,12)." However, Attorney McMahon's declaration does not state that Mulipola was never interviewed by the deputies. It is the declaration that counts. (See, e.g., Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 (Garcia), citing Warrick, supra, 35 Cal.4th at pp. 1024-1025 ["Counsel's affidavit[] must also describe a factual scenario that would support a defense claim of officer misconduct" (italics added)]; see also Evid. Code, § 1043, subd. (b) requiring that a Pitchess motion shall including "[a]ffidavits showing good cause for the discovery or disclosure sought," italics added.) In any event, even assuming that defense counsels' declarations indicated that Mulipola had stated that he was not interviewed by the deputies, in no place in the record did Mulipola present the scenario that the People characterize on appeal as "pure fantasy," namely, that the deputies did not attempt to interview Mulipola concerning the incident. Thus, we have no occasion to determine whether, if Mulipola had actually presented such a scenario, he would have failed to present a plausible factual scenario of officer misconduct.
The Garcia court explained that counsel may make this showing in a declaration or in an affidavit, which are interchangeable in the Pitchess context:
"Here, counsel filed a declaration, not an affidavit. Code of Civil Procedure section 2015.5, with exceptions not relevant in the Pitchess context, 'allows use of "unsworn" declarations made under penalty of perjury whenever state law "require[s] or permit[s]" facts to be evidenced by affidavits or other "sworn" statements. A valid declaration has the same "force and effect" as an affidavit administered under oath.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71, fn.7.)
The People noted as much in opposing Mulipola's first Pitchess motion. "The Warrick questions must be answered in the affidavit."
In suggesting that Mulipola had contended that no deputies had attempted to interview him after the incident, the People state:
"It is pure fantasy to think that no police interview with [Mulipola] took place. After all, he and Felix were the only two people in the cell with [H.L] before [H.L.] was harmed and dragged out. Just as they had done with Felix, jail deputies interviewed [Mulipola] to determine what had happened. It is implausible that no interview took place."
Further, the People acknowledge that "had [Mulipola] stated that he asserted his Miranda right to remain silent, or had he claimed to have made different statements, he would have established good cause in support of his motion." As discussed above, Mulipola denied having made "a statement of confession," or having provided "a statement to any deputies regarding the incident." That Mulipola did not expressly state that he invoked his Miranda right to remain silent, or state that he made statements other than those attributed to him by Deputy Portillo is not material to a determination of whether Mulipola presented a plausible scenario of officer misconduct.
The People also state, "[I]t is possible (and even plausible) that in the interview [Mulipola] asserted his Miranda right to remain silent. [Fn. omitted.]"
We are not persuaded by the trial court's reasoning that Mulipola's failure to deny having been interviewed or to identify what he purportedly stated during the interview demonstrates a failure to present a sufficient plausible alternative factual scenario. The fact that Mulipola did not present the alternative scenarios offered by the trial court does not demonstrate that he failed to offer a plausible scenario in the statement that he did present through his counsels' declarations.
In sum, Mulipola made clear his contention that he did not make the statements to the deputies that Deputy Portillo attributed to him in Portillo's report. Such a scenario " 'might or could have occurred.' " (Uybungco, supra, 163 Cal.App.4th at p. 1049.) No more was required in order to demonstrate good cause for the requested discovery. (Ibid. ["defendant need not point to any corroboration for the defendant's account, and is also not required to 'present a credible or believable factual account of, or a motive for, police misconduct' "].) We therefore conclude that the trial court abused its discretion in determining that Mulipola failed to present a plausible scenario of officer misconduct, and that the court erred in denying Mulipola's second Pitchess motion.
4. Remedy
The remedy for a trial court's erroneous denial of a Pitchess motion for failure to show good cause after entry of judgment was established in Gaines, supra, 46 Cal.4th 172. As the Gaines court explained, the proper remedy "is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand." (Id. at p. 180.) "After reviewing the confidential materials in chambers, the trial court may determine that the requested personnel records contain no relevant information." (Id. at p. 181.) If so, the trial court shall reinstate the judgment. (Ibid.) If the in camera review reveals discoverable information, the trial shall issue a discovery order providing the defendant with disclosure of the documents as "warranted." (Ibid.) The defendant must then "demonstrate a reasonable probability of a different outcome had the evidence been disclosed." (Id. at p. 182.) If the defendant demonstrates such a probability, the court must order a new trial; if he does not, the judgment shall be reinstated. (Id. at p. 181.)
In addition to opposing Mulipola's motion in its entirety on the ground that he failed to establish good cause in the trial court for the requested discovery, the People presented several additional arguments pertaining to the scope of any potential discovery order. In light of its order concluding that Mulipola failed to establish good cause, the trial court did not address these issues and the parties have not addressed them in this appeal. The trial court may consider those arguments on remand. (See People v. Moreno (2011) 192 Cal.App.4th 692, 702, fn. 4.)
The trial court shall follow this procedure on remand. B. Mulipola forfeited his claim that the trial court abused its discretion in imposing a $10,000 restitution fine and fails to establish that trial counsel provided ineffective assistance in failing to object to the trial court's imposition of the fine
Mulipola claims that the trial court abused its discretion in imposing a restitution fine in the amount of $10,000, pursuant to section 1202.4, subdivision (b). Mulipola's counsel did not object to the imposition of the fine at sentencing. Thus, Mulipola's claim is forfeited. (See People v. Gamache (2010) 48 Cal.4th 347, 409 [concluding defendant forfeited contention that the trial court erred in imposing $10,000 restitution fine pursuant to section 1202.4 "by failing to object at his sentencing hearing"].)
Mulipola states in his brief, "Appellant acknowledges that he did not object to the amount of restitution fine and thus may have forfeited this claim. [Citation.]"
Mulipola also contends that his trial counsel provided ineffective assistance in failing to object to the court's imposition of a fine. (See § 1202.4, subd. (b).) We consider that claim below.
1. Governing law
a. Section 1202.4
At the time of Mulipola's commission of the November 2015 offense, former section 1202.4 provided in relevant part:
"(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.
"(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than . . . three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000). . . .
"(2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.
"(c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b). . . .
"(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (Stats. 2012, ch. 873 (S.B. 1479), § 1.5.)
In imposing a restitution fine, a trial court is required to apply the statute "in effect when [an] appellant committed his crimes." (People v. Martinez (2014) 226 Cal.App.4th 1169, 1190.)
b. Ineffective assistance of counsel
In order to prevail on a claim of ineffective assistance of counsel, Mulipola must demonstrate both " ' " 'that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant.' " ' [Citation.] A reasonable probability, the high court has said, 'is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (In re Champion (2014) 58 Cal.4th 965, 1007.) " '[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (Ibid.)
2. Factual and procedural background
The probation report recommended that "[Mulipola] pay the following: [¶] . . . Restitution fine pursuant to [section] 1202.4[, subdivision ](b) in the amount of $10,000." At sentencing, after imposing a 12 year prison term, the trial court stated, "And also pay the followings fines and fees: $10,000 per [section]1202.4[, subdivision] (b) . . . ."
3. Application
Mulipola argues that the fact that the trial court sentenced him to a low term on count 1 and struck his prison priors demonstrates that the court was "inclined to grant [Mulipola] leniency." Thus, he argues, there is a reasonable probability that the court would have imposed a restitution fine in an amount lower than the maximum $10,000 amount if trial counsel had raised an objection to the amount of the fine.
We are unpersuaded. Section 1202.4, subdivision (b)(1) provides that a restitution fine "shall be set at the discretion of the court and commensurate with the seriousness of the offense. . . ." (§ 1202.4, subd. (b)(1).) The record unequivocally establishes that this was a serious offense—a severe beating in a custodial setting. As defense counsel properly acknowledged during sentencing, "We can't dispute that the injuries were egregious in this case." The trial court also remarked at the sentencing hearing shortly before imposing the victim restitution fine, "The current case is very sad in the sense that the victim was very vulnerable here, clearly mentally ill, of no danger to anybody else, and in 43 seconds he almost lost his life."
Mulipola has not argued that an evaluation of the factors listed in section 1202.4, subdivision (d) demonstrate that trial counsel's failure to object to the fine was prejudicial. (See § 1202.4, subd. (d) ["(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime"].)
Under these circumstances, we conclude that Mulipola has not established that it is reasonably probable that the court would have imposed a different restitution fine if trial counsel had objected to the amount of the fine. Accordingly, we conclude that Mulipola failed to establish that trial counsel provided ineffective assistance in failing to object to the trial court's imposition of a restitution fine in the amount of $10,000.
IV.
DISPOSITION
The judgment is conditionally reversed in part with directions to the trial court to review the requested documents in chambers on remand. If the trial court determines that the records contain no discoverable information, it shall reinstate the judgment. If the court determines that the records contain discoverable information, it shall order that the documents be disclosed to Mulipola and provide him with a reasonable opportunity to investigate the disclosed material. The trial court shall order a new trial if Mulipola demonstrates a reasonable probability of a different outcome if the evidence had been disclosed; otherwise, the court shall reinstate the judgment.
In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. GUERRERO, J.