Opinion
E071843
08-20-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND MARTINEZ QUIROZ MUNOZ III, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1601573) OPINION APPEAL from the Superior Court of Riverside County. Godofredo Magno, Judge. Affirmed with directions. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Raymond Martinez Quiroz Munoz III was involved in a drive-by shooting with three cohorts, Jose Quiroz, Andres Bonilla and Robert T. Defendant and Bonilla shot at a vehicle, which contained Alberto G., Leonardo A., and Tawni N. Prior to trial, Robert; entered a guilty plea and testified at defendant's trial. Defendant was found guilty of two counts of conspiracy to commit murder, three counts of attempted murder, shooting at an occupied vehicle and burglary.
We refer to some witnesses by their first names for clarity due to shared last names and/or to preserve their anonymity (Cal. Rules of Court, rule 8.90(b)). No disrespect is intended.
Defendant claims on appeal that (1) his convictions, except for burglary, must be reversed because they were based on the uncorroborated testimony of Robert, who was an accomplice; (2) the fines and fees imposed by the trial court must be reversed because he did not have the ability to pay; and (3) the abstract of judgment must be corrected to reflect the oral pronouncement of sentence.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an amended information with conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)) with the overt acts (1) Quiroz, defendant, Bonilla, and Robert went to 20200 Hunter Road looking for Tawni, (2) Quiroz called Leonardo and asked to meet him; (3) Quiroz followed Leonardo's vehicle; and (4) defendant and Bonilla shot at Leonardo's vehicle. In count 2, defendant was charged with conspiracy to commit murder (§ 182, subd. (a)(1)) with the overt acts (1) Quiroz, defendant, Bonilla, and Robert went to 20200 Hunter Road looking for Leonardo; (2) Quiroz called Leonardo and asked to meet him; (3) Quiroz followed Leonardo's vehicle; and (4) defendant and Bonilla shot at Leonardo's vehicle. Defendant was charged in counts 3, 4, and 5 with attempted premeditated, willful and deliberate murder (§§ 664, 187, subd. (a)). For count 3, defendant was charged with personal use of a firearm (§ 12022.53, subd. (c)). For counts 4 and 5, defendant was additionally charged with personal use of a firearm and personal use of a firearm causing great bodily injury (§ 12022.53, subds. (c) & (d)). In count 6, he was charged with first degree burglary (§ 459) and personally using a firearm (§ 12022.53, subd. (b)). In count 7, he was charged with shooting at an occupied motor vehicle (§ 246) and personal use of a firearm (§ 1202253, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was found guilty of all counts and the weapons use enhancements. The jury found the allegations, that the attempted murders in counts 3, 4, and 5 were premeditated and deliberate, to be not true. Defendant was sentenced to the determinate term of seven years, plus the indeterminate term of 75 years to life to be served in state prison.
Additional fines and fees were imposed, which will be discussed further, post.
B. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
a. Rebekkah R.
In March 2016, Rebekkah R. was staying with Leonardo in a trailer located on the property at 20200 Hunter Street in Mead Valley. At the time, Rebekkah was dating Hayden N. who also lived in the trailer. Leonardo was dating Hayden's sister, Tawni. Alberto and Robert frequently visited the trailer. They were all friends and did methamphetamine together on a daily basis. Rebekkah had been sober for five months prior to the trial.
On March 25, 2016, Leonardo and Tawni picked up Rebekkah and Hayden on the street and they all drove to Robert's house. Robert walked out to the car. Tawni opened her door, punched him in the face and took his cellular telephone. They all drove back to the trailer. Robert was upset and came to the trailer the next day. Tawni gave him back his phone and they all did drugs together. Robert no longer appeared to be upset.
On March 28, 2016, Leonardo, Hayden, Tawni, Rebekkah, and Alberto were all at the trailer. Leonardo, Alberto, and Tawni left the trailer in Leonardo's car. Rebekkah and Hayden went and got food and then came back to the trailer. While they were eating their food, sometime before 10:00 p.m., they observed a white pickup truck drive up to the trailer. Rebekkah recognized it as belonging to Chema, who was identified as Jose Quiroz. Bonilla then knocked down the back door to the trailer and came in holding a pistol. Rebekkah had met Bonilla the day before. Defendant and Quiroz then entered the trailer and were also holding guns. Quiroz told Rebekkah they were looking for Leonardo and Tawni. Quiroz searched the trailer but found no one else inside.
Quiroz then brought Robert inside the trailer. It appeared that Robert was forced to enter the trailer as Quiroz was holding onto his neck. Robert sat down at the kitchen table. Robert told Quiroz and the others that Rebekkah was not the woman who had taken his phone. Bonilla received a phone call and Bonilla, Quiroz, defendant, and Robert ran out of the trailer and drove off in Quiroz's truck. Hayden called Leonardo and Tawni and warned him that the four men were looking for them and to not return to the trailer.
Leonardo and the others were shot at by the occupants of the white pickup truck and Alberto was badly injured. Tawni called Rebekkah right after they were shot at while she was flagging down an ambulance and the police. Tawni asked Hayden to call their mother because she could not talk.
Rebekkah and Hayden left the trailer in a stolen car they had stashed on the property. Rebekkah was apprehended several days later while in the stolen car and she was taken to the police station. Hayden was able to escape. Rebekkah was shown a six-pack photographic lineup and identified Bonilla, Quiroz, and defendant as being in the trailer with Robert on the night of the shooting.
Rebekkah and Hayden saw defendant, Tawni, and Robert the next day, March 29, at a drug house. Leonardo was also there even though he been shot the night before. Rebekkah never saw Robert with a gun on the night of the shooting.
b. Robert
Robert had been charged in the same case as defendant but entered into a plea agreement in July or August 2017, in exchange for his testimony. He was given a sentence of 16 years in state prison. In March 2016, he lived on Traxler Lane in Mead Valley. He had known Tawni for six years. He and Alberto were good friends. He knew Rebekkah but they were not close friends. He was friends with Leonardo. In March 2016, Robert was using methamphetamine daily, but had been sober for two years as of the time of trial.
On March 27, Tawni and Leonardo called Robert to meet them at their car. When they arrived, Alberto, Hayden, and Rebekkah were with them. Tawni and Robert struggled over his cellular telephone. She grabbed his phone eventually, pushed him down, and they all left in their vehicle.
Robert was angry. He called his phone several times, but they did not answer. He told Quiroz what had happened. Robert went to Leonardo's trailer the next day so he could get his phone back. Hayden gave it back to him. Robert called Quiroz and told him he got his phone back and everything was fine. However, that night, around 9:00 p.m., Quiroz called Robert and told him to meet him outside of Robert's house.
Quiroz arrived in his white pickup truck. Quiroz wanted him to get in the truck and direct him to Leonardo's trailer. Robert got in the truck. Defendant and Bonilla were sitting in the backseat of the truck. When they arrived at Leonardo's trailer, he saw that Bonilla had a handgun. Robert thought they were there to rob Leonardo.
Bonilla got out first and went to the back door of the trailer. He came out and defendant and Quiroz went back in with him. Robert stayed in the truck. Quiroz came back to get Robert and put his hand on Robert's shoulder directing him to go inside the trailer. Rebekkah and Hayden were inside the trailer. Quiroz asked Rebekkah and Hayden where they could find Leonardo. Robert now noticed that defendant was holding a gun.
Quiroz, defendant, Bonilla, and Robert all left the trailer, and while they were driving, Quiroz told Robert to call Leonardo and tell him to meet them. Robert told Leonardo that he wanted to buy drugs. Leonardo hung up on Robert. Quiroz took Robert's phone and called Leonardo back. They then saw Leonardo's car driving toward them. Robert did not know who Leonardo was with in the car and could not see inside because of the tinted windows. Robert pointed out the car to Quiroz, who was driving; Quiroz made a fast U-turn and began following Leonardo's car.
Defendant was sitting in the passenger's seat of Quiroz's truck, and Bonilla and Robert were in the backseat. Quiroz told Bonilla and defendant to roll down their windows and start shooting at Leonardo's car. Bonilla had a handgun. Defendant had a rifle that Robert estimated was two feet in length.
Bonilla and defendant did not shoot right away and questioned Quiroz whether they should really shoot. Bonilla and defendant eventually rolled down their windows and started shooting at Leonardo's vehicle. They fired multiple shots and Bonilla reloaded his gun. They both ran out of bullets and Quiroz drove off. Quiroz told them all not to say anything. Quiroz never had a gun.
Two days later, Robert was contacted by the police. He initially lied to the police because he was afraid of being a snitch. He initially indicated that he did not go to the trailer. He eventually told the police everything on May 4, 2016, including telling them that Bonilla and defendant were the shooters. He identified Quiroz, Bonilla, and defendant from a six-pack photographic lineup before he was offered a plea deal.
c. Leonardo
Leonardo had lived in the trailer in Mead Valley for approximately six years as of March 2016. He was in a close circle of friends with Tawni, Alberto, Hayden, Rebekkah, and Robert. Tawni, Leonardo, Hayden, and Rebekkah were all together on March 27, 2016, when they asked Robert to meet up with them at his car. While Robert was at Leonardo's car, Tawni took Robert's phone because Leonardo wanted to see text messages that Robert may have from a woman named Janice, who Leonardo was interested in. Tawni pushed Robert away and they drove off. Leonardo returned the phone to Robert the following day. Robert did not seem mad after he got his phone back but told Leonardo that Leonardo would regret taking the phone.
Leonardo later stated it was only him and Tawni.
On March 28, Leonardo was with Alberto and Tawni in his car. Hayden and Rebekkah were at the trailer. Tawni was driving Leonardo's car. Leonardo was in the passenger's seat and Alberto was in the backseat. Robert called him sometime between 9:00 and 10:00 p.m. Robert asked Leonardo to meet him so he could buy drugs and Leonardo initially agreed. He then received another phone call from Robert's phone but it was not Robert so he hung up. He received a text message from Rebekkah to look out for Robert. Tawni continued to drive and they saw a white pickup truck following them. Leonardo did not recognize the truck. The truck tried to hit them. Leonardo did not know who was inside and was unable to see inside the truck.
Leonardo heard numerous gunshots and was shot in the ear. Tawni called the police. Leonardo was lying down in the backseat bleeding and yelling. At the time of trial Leonardo still had a nine-millimeter bullet fragment in his ear. Leonardo did not know defendant, Bonilla, or Quiroz.
d. Alberto
Alberto was friends with Leonardo, Tawni, and Rebekkah in March 2016. Alberto had known Robert since high school. On March 27, 2016, he was with Leonardo, Tawni, Hayden, and Rebekkah in one car and they went to meet up with Robert. He did not see Tawni take Robert's phone but when they got back to the trailer, they told Alberto they had Robert's phone.
The following day, Alberto was with Tawni and Leonardo. Tawni was driving Leonardo's car; Leonardo was in the passenger's seat; and Alberto was in the backseat. Leonardo mentioned that a truck was following them but Alberto did not look back. Leonardo called someone advising them a truck was following them. Tawni sped up. Alberto then heard gunshots and one of the gunshots hit him.
Alberto was shot in the stomach first. He lifted up his shirt and his intestines were out. A second shot hit his lower stomach. He then blacked out. He was shot a third time on the side. He was in the hospital for over one month. All of the gunshots were life threatening. He had several surgeries and still had some pain. He was scheduled for another surgery. Alberto did not know defendant.
e. Investigation
Numerous expended shell casings were located at the scene of the shooting. The shell casings were from two different caliber guns: five were from nine-millimeter ammunition and four were from a larger caliber gun identified as 7.62 x 39 ammunition. The car had numerous gunshots holes. The nine-millimeter ammunition would have been fired from a handgun. The 7.62 x 39 ammunition was most likely fired from a rifle.
Riverside County Sheriff's Deputy Christopher Varela saw Bonilla at a restaurant on April 29, 2016. Bonilla appeared nervous and was searched. He had a loaded, nine-millimeter handgun in his waistband. He had a second loaded magazine in his pocket. All of the ammunition on his person was nine millimeter. The five nine-millimeter casings found at the shooting scene were examined and compared to the weapon found on Bonilla. The casings matched Bonilla's gun.
On March 31, 2016, San Bernardino County Sheriff's Investigator Chris Barajas was involved in a search of the Quiroz residence located in Perris. During the search, inside a green plastic laundry basket, a rifle magazine was found. The laundry basket was next to a pull-out sofa bed. The magazine used 7.62 x 39 ammunition.
At the time the residence was searched, the following individuals lived in the residence: (1) Maria (defendant's grandmother); (2) Maria's husband; (3) Maria's son Quiroz (defendant's uncle); (4) Maria's daughter; (5) Gilbert Munoz (Maria's grandson); and (6) defendant (Maria's grandson). Quiroz had a bedroom in the house and kept his belongings in his bedroom. Gilbert lived in a trailer on the property. Defendant slept on the couch in the living room. Defendant kept his belongings in a corner of the living room near the sofa bed.
When the police searched the residence, Maria advised the officers that the laundry basket in which the rifle magazine was found belonged to defendant. Maria was interviewed one year later and claimed that she was wrong that the basket belonged to defendant. She claimed she never saw the basket described by the police. Defendant used a white basket and not the green basket in which the rifle magazine was found. Maria insisted everyone in the house used the green basket. She believed the white basket was in the living room at the time of the search near defendant's belongings but it was not in the photographs taken on the day of the search.
Investigator Ruben Martinez was involved in the search of Maria's house and spoke with Maria. He asked Maria who owned the clothes in the green basket and she identified them as belonging to defendant. She also told him that defendant slept on the sofa bed. Investigator Martinez did not see a white laundry basket in the living room. Investigator Martinez pointed to the basket when Maria identified it.
2 DEFENSE
Maria was recalled. When Maria arrived home on March 28, 2016, at approximately 11:15 p.m., she saw a car in front of her house that belonged to defendant's girlfriend, Kimberly Menera. She glanced into the living room and saw defendant's girlfriend sleeping on the sofa bed. Menera and defendant had two children, and Maria believed they were also asleep on the sofa bed. She believed defendant was sleeping on the sofa bed but it was dark so she could not say for sure he was present. On March 29, she only saw the white laundry basket in the living room. She heard defendant's voice that morning at around 7:30 a.m.
Menera was still with defendant at the time of trial. Menera and their two children spent the night at Maria's house on March 28, 2016. Defendant was with her the entire evening and night. She was positive defendant never left the house that evening. The green laundry basket was used by everyone on the house. She used the white laundry basket that was normally kept in the living room by where defendant slept.
The following morning, March 29, Menera took defendant to a court appearance at 8:30 a.m. Menera admitted that both her and defendant's clothes were in the green laundry basket where the rifle magazine was found. Menera had been present at the preliminary hearing and talked to defendant almost every day. Menera did not tell anyone that she had been with defendant the entire night of March 28 until one year after he was arrested and after the preliminary hearing.
DISCUSSION
A. ACCOMPLICE TESTIMONY
Defendant insists his convictions of attempted murder and shooting at an occupied vehicle must be reversed for insufficiency of the evidence because the only evidence establishing he was present at the time of the shooting and that he was the shooter came from the uncorroborated testimony of Robert, who was an accomplice. Further, his convictions of conspiracy to commit murder must be reversed because there was insufficient evidence of a conspiracy to commit murder.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. . . . [W]e review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . 'We resolve neither credibility nor evidentiary conflicts.' " (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 1111 provides, "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." "An accomplice is someone subject to prosecution for the charged crimes by reason of aiding and abetting or being a member of a conspiracy to commit the charged crimes." (People v. Houston (2012) 54 Cal.4th 1186, 1224.)
"Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. [Citations.] It need not be sufficient to establish every element of the charged offense or to establish the precise facts to which the accomplice testified. [Citations.] It is 'sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (People v. Valdez (2012) 55 Cal.4th 82, 147-148.) " 'The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.' " (People v. Romero and Self (2015) 62 Cal.4th 1, 32-33.)
" ' "The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration." ' " (People v. Rodriguez (2018) 4 Cal.5th 1123, 1128.)
In accordance with these principles, here, the jury was instructed with CALCRIM No. 335 on accomplice testimony as follows: "If the crimes of Conspiracy to Commit a Murder, Attempted Murder, Residential Burglary, or Shooting of an occupied motor vehicle were committed, then Jose Quiroz, Andres Bonilla, and Robert . . . were accomplices to those crimes. [¶] You may not convict the defendant of Conspiracy to Commit a Murder, Attempted Murder, Residential Burglary, or Shooting of an occupied motor vehicle based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: [¶] 1, [t]he accomplices statement or testimony is supported by other evidence that you believe; [¶] 2, [t]hat supported evidence is independent of the accomplice's statement or testimony; [¶] AND [¶] 3, [t]hat supporting evidence tends to connect the defendant to the commission of the crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime and it does not need to support every fact about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence."
1. ATTEMPTED MURDERS
Here, defendant was convicted of the three attempted murders of Leonardo, Tawni, and Alberto. It is well-settled that to prove the crime of attempted murder, the prosecution must establish "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) In addition, he was found guilty of shooting at an occupied vehicle which requires a person to "maliciously and willfully discharge a firearm at an . . . occupied motor vehicle." (§ 246.) Here, defendant was also found to have personally used a firearm for counts 3, 4, and 5. As such, if the evidence established that he was present and the shooter, it would support the attempted murders and shooting at an occupied vehicle.
Here, ample nonaccomplice testimony corroborated the testimony of Robert, placing defendant in the vehicle and supporting Robert's testimony that defendant was one of the shooters. Initially, Rebekkah testified she saw a white pickup truck arrive at the trailer, which she knew belonged to Quiroz. Robert also stated that Quiroz picked him up at Robert's house in Quiroz's white pickup truck and directed Quiroz to Leonardo's trailer. When Robert got in the truck, Bonilla and defendant were in the backseat. He first noticed that Bonilla had a handgun. Rebekkah corroborated that Bonilla, defendant, Robert, and Quiroz were all together that night in Quiroz's truck.
Rebekkah testified that Bonilla kicked in the door of the trailer and entered alone. He was holding a handgun. Defendant and Quiroz then entered the trailer, both holding handguns. Robert testified that he sat in the car while Bonilla first went to the trailer. Bonilla returned and defendant and Quiroz went with him. Robert testified that Quiroz then returned to the truck and grabbed him by the shoulder, directing him into the trailer. Rebekkah testified that Quiroz was holding on to Robert directing him into the trailer. Both Rebekkah and Robert testified that Quiroz was looking for Leonardo and Tawni. Rebekkah confirmed that they got a phone call and immediately left the trailer all together in Quiroz's truck. Rebekkah corroborated Robert's testimony that just prior to the shooting, defendant was with Bonilla, Quiroz, and Robert; defendant had a gun; and they were focused on finding Leonardo and Tawni.
Leonardo confirmed the details that Robert gave as to the actual shooting. Leonardo testified that he received a telephone call from Robert who asked to meet him to buy drugs; Robert admitted making the call. Leonardo and Robert also stated that there was a second call from Robert's phone but that it was not Robert. Leonardo observed a pickup truck following them. Robert testified that they happened to see Leonardo's vehicle and followed it. Robert indicated that Bonilla and defendant did not immediately shoot at Leonardo's vehicle, instead checking with Quiroz whether they should start shooting. Leonardo testified that the white pickup followed them for some time prior to shooting at them. Both Robert and Leonardo testified that there were numerous shots fired into Leonardo's vehicle.
Robert had testified that both Bonilla and defendant were firing guns. This testimony was corroborated by the evidence that two types of casings were found at the scene. It was confirmed that the nine-millimeter casings matched Bonilla's gun, corroborating Robert's testimony that Bonilla was one of the shooters. During a search of the home where defendant was living, a rifle magazine was found in a green laundry basket near defendant's belongings. It used the same ammunition as the second set of casings found at the shooting scene. The jury could reasonably conclude that the magazine belonged to defendant, rejecting the defense evidence, corroborating Robert's testimony that defendant was the other shooter.
As stated, "[c]orroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. . . . It is 'sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (People v. Valdez, supra, 55 Cal.4th at pp. 147-148.) Here, ample evidence connected defendant to the attempted murders and shooting at an occupied vehicle. Robert's testimony was corroborated with ample other testimony that defendant was one of the shooters. Substantial evidence supports defendant's convictions.
2. CONSPIRACY TO COMMIT MURDER
As for the two counts of conspiracy to commit murder, defendant recognizes that the uncorroborated testimony of an accomplice may establish the existence of a conspiracy. However, he insists that although the evidence establishes that defendant entered into a conspiracy to commit burglary with Quiroz and Bonilla, the evidence does not support conspiracy to commit murder.
The existence of a conspiracy may be proved by uncorroborated accomplice testimony. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) "Conspiracy is a specific intent crime requiring both an intent to agree or conspire and a further intent to commit the target crime or object of the conspiracy." (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) "The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder—hence all murder conspiracies are conspiracies to commit first degree murder." (Ibid.)
Here, it is not "tenuous," as argued by defendant, to find that Bonilla, defendant, and Quiroz all conspired to commit murder prior to picking up Robert. Robert got into Quiroz's truck after Bonilla and defendant. Bonilla, Quiroz, and defendant all were armed with guns. When they burst into the trailer, they inquired as to the whereabouts of Tawni and Leonardo. Since they were not in the trailer, Robert called Leonardo and set up a meeting place. When they saw Leonardo's car, Quiroz immediately followed them and told defendant and Bonilla to shoot at the car. Although Robert expressed that defendant and Bonilla first questioned Quiroz if they should shoot at the car, Quiroz encouraged them to shoot and they readily agreed. The evidence strongly supports that Quiroz, Bonilla, and defendant entered into a conspiracy to murder either prior to picking up Robert, or once they saw Leonardo's car. It was clear they conspired to find Leonardo and Tawni prior to picking up Robert, and the final part of the conspiracy to commit murder could have been formed as late as when they saw Leonardo's car.
Defendant points to the fact that although the jury found defendant guilty of conspiracy to commit murder, it found the special allegations that the attempted murders were premeditated and deliberate not true. He argues that this inconsistent verdict defeats the conspiracy charges.
We decline to speculate as to the reason for the not true finding by the jury. It is possible the jury misunderstood the instructions or exercised leniency. They also could consider the conspiracy to commit murder occurred when Quiroz told Bonilla and defendant to shoot and they asked if he was sure. Although they conspired to go the trailer and find Leonardo and Tawni, it is conceivable that the decision to commit murder was not formed until they saw the car. The jury conceivably could conclude this was not premeditation and deliberation as defined for the attempted murder. The inconsistent verdict does not require reversal of the conspiracy to commit attempted murder convictions. (See People v. Palmer (2001) 24 Cal.4th 856, 860-861.)
Moreover, it was not important that Robert be in on the conspiracy to commit murder. Although Robert believed they were going to the trailer just to commit burglary, the jury could reasonably conclude that prior to picking up Robert, Quiroz, defendant, and Bonilla conspired to find Leonardo and Tawni and commit murder, or after going to the trailer and seeing Leonardo's car, they conspired to commit murder without Robert's knowledge. Substantial evidence supports defendant's convictions of conspiracy to commit the murder of Tawni and Leonardo.
B. ABILITY TO PAY
Defendant claims, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that the trial court violated his federal constitutional right to due process by imposing the restitution fine and fees after determining he did not have the ability to pay. Defendant contends this court should strike the fees imposed and stay the restitution fine until the People can show he has an ability to pay the fine. The People contend the trial court did not find an inability to pay the imposed fines and fees; the restitution fine is a form of punishment and it is properly examined under the excessive fines clause not requiring an ability to pay determination; and any conceivable error was harmless beyond a reasonable doubt. The California Supreme Court will ultimately decide these issues as it has granted review in People v. Kopp, review granted on November 13, 2019, S257844, but we conclude remand is not necessary.
In the probation report, it was recommended that the trial court impose a $10,000 restitution fine pursuant to Penal Code section 1202.4; a $1,200 parole revocation fine, which would be stayed; a booking fee of $514.58 pursuant to Government Code section 29550; a criminal conviction assessment fee of $210 pursuant to Government Code section 70373; the cost of the probation report not to exceed $1,095; and $1,500 for presentence incarceration costs.
At sentencing, the trial court noted, "I want to address the restitution fine of $10,000. I will impose the minimum fine. I—this—it's $300. [¶] [Defense counsel] I imagine that [defendant] does not have the ability to pay?" Defense counsel responded, "Correct, Your Honor." The trial court found, "And given the sentence of the Court, I will reduce that to $300, the minimum fine. An additional revocation fine, again, reduced to $300, but that will be suspended. There will be a conviction assessment fee of $30, a booking fee of $514."
Initially, defendant insists that the trial court determined that he did not have the ability to pay all the fines and fees. However, the record supports that the trial court was only referring to the $10,000 restitution, which it reduced to $300.
On January 8, 2019, after sentencing in this case, the Court of Appeal issued its opinion in Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of young children. She requested and received a full hearing on her ability to pay the court facilities fee, court operations fee, and the mandatory minimum restitution fine. Despite her clear inability to pay these fees and fine, the trial court mandatorily imposed them. (Id. at pp. 1162-1163.)
The appellate court held that the trial court violated defendant's right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and Penal Code section 1465.8, without making a determination as to the defendant's ability to pay even though such determination was not required by the statute. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Further, the court concluded that although the imposition of restitution fines pursuant to Penal Code section 1202.4, subdivision (b), is punishment unlike the above fees, it raises similar constitutional concerns, and therefore, the Dueñas court held that while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172.)
We first address the booking fee imposed pursuant to Government Code section 29550. Government Code sections 29550 and 29550.2 permit judicial consideration of the defendant's ability to pay. As such, it differs from the fines and fees discussed in Dueñas. The California Supreme Court has already determined that the failure to challenge the imposition of a booking fee at sentencing forfeits the claim on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 592-593, 599.) Defendant has forfeited any objection to the imposition of the booking fee due to the trial court's failure to determine his ability to pay.
As for the remaining fines and fees, Government Code section 70373 does not include language regarding the defendant's ability to pay the fees. Penal Code section 1202.4, subdivision (b), provides for a mandatory minimum restitution fine in the amount of $300 absent "compelling and extraordinary reasons for not doing so." If the trial court wishes to exceed $300, only then must if determine if the defendant has the ability to pay the additional fine. (Pen. Code, § 1202.4, subd. (d).)
As to the restitution fine imposed pursuant to section 1202.4, subdivision (b), we need not determine if it is properly analyzed under the excessive fines clause of the Eighth Amendment as argued by the People or whether Dueñas was properly decided as to all the fees imposed. Even if Dueñas applies to this case, the record supports defendant has the ability to pay based on his prison wages rendering any conceivable constitutional error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1033 [defendant has ability to pay assessments and fines though prison wages].) Defendant, who has received a sentence of 75 years to life plus 7 years, can earn wages in prison to pay the restitution fines and the fees imposed. We find that even if Dueñas was properly decided, any conceivable constitutional error was harmless.
C. ABSTRACT OF JUDGMENT
Defendant contends the minute order from sentencing and the abstract of judgment do not accurately reflect the oral pronouncement of sentence and must be corrected.
As set forth ante, at the time of oral pronouncement of sentence on December 14, 2018, the trial court stated, "I will reduce that to $300, the minimum fine. An additional revocation fine, again, reduced to $300, but that will be suspended. There will be a conviction assessment fee of $30, a booking fee of $514." This was the entirety of the trial court's imposition of fines and fees.
The minute order from sentencing reflected that the defendant was ordered to pay the presentence report fee not to exceed $1,095; the booking fee of $514.58; presentence incarceration costs totaling $1,500; a restitution fine of $300; a stayed parole revocation fine in the amount of $300; a criminal assessment fee of $30 per convicted charge; and court operations assessment fee in the amount of $40 per convicted charge. The abstract of judgment prepared for the determinate term, which was filed on December 18, 2018, reflects no fines or fees.
On December 19, 2018, the trial court then issued a nunc pro tunc minute order, without appearance of the parties, correcting the sentencing minute order, imposing a criminal conviction assessment fee of $210 pursuant to Government Code section 70373 and a $280 court operations assessment fee pursuant to Penal Code section 1465.8, subdivision (a)(1), as an accurate reflection of the sentence imposed. A new abstract of judgment for the indeterminate term was filed on December 24, 2018, reflecting the $300 restitution fine and parole revocation fine; a $280 court security fee; a $210 criminal assessment fee; and a $514.58 booking fee.
The minute order from sentencing and abstract of judgment should accurately reflect the oral pronouncement of sentence, which controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) " ' "[A] nunc pro tunc order cannot declare that something was done which was not done." ' " (People v. Borja (2002) 95 Cal.App.4th 481, 485; see In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 852 ["[I]t is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did"].)
As such, only the fines and fees that the trial court orally imposed should appear on the abstract of judgment and the nunc pro tunc order is vacated. We shall order that the sentencing minute order be amended to remove the $1,500 fee imposed pursuant to section 1203.1, subdivision (c), the $1,095 fee under section 1203.1, subdivision (b), and the $40 assessment under section 1465.8, subdivision (a)(8). The abstract of judgment on the indeterminate term shall be amended to strike the $280 court security fee; reduce the criminal conviction assessment fee to $30; and reduce the booking fee to $514.
Defendant also notes that the abstract of judgment on the determinate term improperly reflects that sentence was imposed, rather than stayed, on count 7. The People agree. The abstract of judgment on the determinate term shall be amended to reflect the sentence on count 7 was stayed.
DISPOSITION
The trial court is directed to strike the $1,500 fee imposed pursuant to Penal Code section 1203.1, subdivision (c), the $1,095 fee under Penal Code section 1203.1, subdivision (b), and the $40 assessment under Penal Code section 1465.8, subdivision (a)(8), and to prepare a new minute order reflecting the same. The trial court is directed to prepare a new abstract of judgment for the indeterminate term striking the $280 court security fee; reducing the criminal conviction assessment fee to $30; and reducing the booking fee to $514. The new abstract of judgment shall indicate the determinate term sentence on count 7 is stayed. Copies of the new abstracts of judgment are to be sent to the appropriate prison authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.