Opinion
C084852
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. VINCENT GERALD OROSCO-HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE001095)
Defendant Vincent Gerald Orosco-Hernandez appeals from a judgment entered after a jury convicted him of second degree robbery, vandalism, and making a criminal threat. He contends insufficient evidence supports: (1) the verdict for making a criminal threat and (2) an order requiring him to pay $6,000 in attorney fees. He also requests the striking of interest included in a minute order, but not imposed by the court at rendition of judgment. The People concur the interest condition must be stricken. Both parties note the trial court's failure to orally impose the restitution award to victim AM/PM.
We remand the case so the trial court may strike the condition of interest and exercise its discretion regarding the restitution award for AM/PM, but otherwise affirm the judgment.
FACTUAL BACKGROUND
Defendant entered an AM/PM store, took two 18-packs of beer, and was seen by the assistant manager leaving without paying for them. Another gas station employee, situated outside the store and unaware of the theft, offered to help defendant carry them. Both packs of beer broke, causing the bottles to fall and scatter. The employee went inside, and defendant, who seemed "okay," picked up the beer. The assistant manager called the sheriff's department.
When defendant later came back to the door of the AM/PM, the employee held the doors closed for protection. Defendant was angry and threw a beer bottle in the direction of the employee, breaking a window. Glass from the window cut the employee's wrist. Defendant was apprehended a few blocks away. Both the assistant manager and the employee of the store identified defendant as the suspect and relayed information concerning the incident to a responding officer, Deputy Josh Langensiepen.
Prior to defendant's transport, he repeatedly kicked the door of a different deputy's patrol car and banged his head against the window despite instructions to stop. Deputy Langensiepen was responsible for taking defendant to the jail, and the trip was recorded by an in-car camera system. Another deputy trailed from behind.
Deputy Langensiepen testified concerning the threats made by defendant during the transport, and the video was played for the jury, which was also given a previously prepared transcript of the recording.
The transcript reflects defendant stated: "Come on, blood. Please don't ever let me catch any of you guys slippin' nigga. I'll kill you and all you guys' family, blood, on my mama, nigga. That's fucked up, nigga. I didn't even do nothing, bruh. Take me right now, bruh. Take me right now, bruh. Don't ever let me catch you and your family, nigga. I'll, mmm, I didn't even do nothin' wrong, bro. I didn't do nothing. Blood, I'mma (unintelligible) nigga. Just remember me in your sleep, nigga. That's it. That's it. That's it, bro. Hurry up, come on. What's my charges? What's my charges?" (Italics added.)
Later, defendant demanded the names of all officers involved and threatened to kill the officer who he said had knocked out his tooth. He also bragged: (1) he previously sued the Sacramento Police Department and obtained $250,000, telling Deputy Langensiepen to look him up, and (2) his sister was a lawyer.
Deputy Langensiepen testified about his large family, comprised of his mother, father, two younger siblings, cousins, and grandparents. Defendant's threats towards him and his family made him "uneasy." Deputy Langensiepen felt "threatened" and was "concerned for [his] safety and [his] family's safety."
He explained he was "concerned with my family's safety because, you know, I'm not sure of what he's capable of. I could control kind of in the moment of what's going on. Outside of that I don't know who is he talking about, who those individuals are talking to, who they're connected to. If, in fact, some of the threats are sometimes carried out, so, and you know they have, our families have nothing to do with it." Deputy Langensiepen was not able to protect his family 24 hours a day. He was "concerned and afraid" when defendant originally made the threat, and these feelings continued because of the uncertainty regarding defendant following through on the threat and Deputy Langensiepen's inability to protect his family at all times.
Deputy Langensiepen conceded on cross that he had not met defendant previously, defendant had not met his family, defendant had no information on where he lived nor had he shared personal information with defendant. He also conceded defendant's mail, e-mail, and phone calls would be monitored in jail. However, as brought out on redirect, he did not know when defendant would be released from jail, and people could be released after posting bail.
Finally, Deputy Langensiepen explained that, "[f]or me the word 'slippin' in the context it was used was you better watch yourself constantly. Always look over your back. To me it insinuated that he or someone else was going to be lurking around, trying to inflict harm on me or my family."
DISCUSSION
1.0 Substantial Evidence Supports the Criminal Threats Conviction
Defendant contends insufficient evidence supports the jury's verdict on the criminal threat conviction. We disagree.
To establish criminal threats under Penal Code section 422, the prosecution must prove: (1) the defendant willfully threatened to commit a crime causing death or great bodily injury to the victim; (2) the threat was made with specific intent that it be taken as a threat—even absent intent to carry out the threat; (3) the threat " 'was, "on its face and under the circumstances[,] . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat" ' "; (4) the threat caused the victim " ' "to be in sustained fear for his or her safety or for his or her immediate family's safety" ' "; and (5) under the circumstances, the fear was reasonable. (In re George T. (2004) 33 Cal.4th 620, 630.)
Undesignated statutory references are to the Penal Code.
Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence—evidence that is "reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We draw all available inferences supporting the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Hicks (1982) 128 Cal.App.3d 423, 429, quoting People v. Hillery (1965) 62 Cal.2d 692, 702.)
Here, defendant challenges the evidence supporting the third and fifth elements of his criminal threat conviction. Defendant's argument raised for the first time in reply concerning the fourth element is likely forfeited (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9), but in any event, it is unmeritorious. Substantial evidence supports the judgment.
Beginning with the threat itself, defendant expressly threatened to kill Deputy Langensiepen and his family, stating, "I'll kill you and all you guys' family." He swore he would do this "on my mama." He warned the deputy to "remember me in your sleep" and to not "ever let me catch any of you guys slippin."
The circumstances surrounding that threat also support the seriousness of it. Defendant had a propensity for violence as shown by his earlier injury of an AM/PM employee and repeated kicking of the door of a patrol car during his detention. He also threatened to kill the deputy who he said knocked out his tooth.
From this, the jury could reasonably conclude the threat was "so unequivocal, unconditional, immediate, and specific as to convey . . . a gravity of purpose and an immediate prospect of execution of the threat . . . ." (§ 422, subd. (a).) As conceded by defendant in his opening brief, this element does not require " 'an immediate ability to carry out the threat.' " (People v. Wilson (2010) 186 Cal.App.4th 789, 807, quoting People v. Lopez (1999) 74 Cal.App.4th 675, 679.) Threats made in custodial situations are sufficiently "immediate" when there is an "immediate prospect of execution" derived from the surrounding circumstances. (Wilson, at pp. 810-814.) A threat made in the presence of an officer who later took the defendant into custody (People v. Franz (2001) 88 Cal.App.4th 1426, 1448), as well as a threat made to a custodial officer by an inmate being paroled in 10 months (Wilson, supra, at p. 814) were found sufficiently immediate.
Here, although defendant was being transported to jail when he made the threats, the deputy did not know how long defendant would be incarcerated. Further, defendant's intent to carry out that threat in the future is seen both in his threatening the deputy's family, who were not present at the time of the threat, and also in his statement, "don't ever let me catch any of you guys slippin.' "
We also find substantial evidence that Deputy Langensiepen's expressed fear for himself and his family was both sustained and reasonable. The threat was specific, occurring after defendant's other violent conduct. He not only threatened to kill the deputy and his family, but swore on his mother that he would do so. Regardless of whether defendant had previous encounters with the deputy or his family, defendant stated that he intended to learn the names of all the officers involved in his arrest, that he had a sister who was an attorney, and that he had successfully obtained $250,000 from the Sacramento Police Department in another case. This supports an inference that defendant intended to and could follow through on his threat.
The reasonableness of Deputy Langensiepen's fear is also supported by his testimony that he understood defendant's threat to mean that he should be constantly on the lookout, and "[defendant] or someone else was going to be lurking around, trying to inflict harm on [him] or [his] family." The deputy explained he did not know what defendant was capable of, that "some of the threats are sometimes carried out," and that he did not know how long defendant would be in jail or whether he would follow through with his threat upon release.
Finally, Deputy Langensiepen testified both regarding his initial, reasonable fear and that this fear continued beyond that day. This meets the "sustained" requirement. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349 [fear continuing up to 15 minutes after one-minute encounter was "sustained" for purposes of § 422].)
Defendant's reliance on his mood swings and possible intoxication does not alter this result, nor does defendant's characterization of Deputy Langensiepen's physical and emotional condition as represented on the video. That the jury could have reasonably found (1) defendant was ranting without the requisite intent and/or (2) the deputy did not have sustained, reasonable fear does not require reversal where substantial evidence supports the jury's implicit determination that the corresponding elements were met. (People v. Hicks, supra, 128 Cal.App.3d at p. 429.)
Defendant is no better served by his reliance on In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137-1138, as that case is factually distinguishable. There, a juvenile defendant's threat to physically assault a teacher after that teacher accidentally opened a door into the minor, and where the minor was sent to the office, but the police were not called until the next day was insufficient to support a section 422 conviction. (Ricky T., at p. 1138.) Here, defendant's conduct and the circumstances surrounding it are qualitatively different and sufficient to support the section 422 conviction for the reasons previously discussed.
2.0 Defendant Forfeited the Attorney Fee Challenge
Defendant argues insufficient evidence supports both his ability to pay the trial court's award of $6,000 in attorney fees for representation by his public defender under section 987.8 and/or that $6,000 "was the actual cost of the legal services provided."
Here, the probation report did not recommend reimbursement of defense costs under section 987.8. It merely recognized, "If there are reimbursable costs to the County in the disposition of this case for appointed counsel, . . . it is recommended the defendant be ordered to report to the Department of Revenue Recovery for a financial evaluation and recommendation of ability to pay said costs."
Nonetheless, at sentencing and after defense counsel requested the reduction of "fines to the statutory minimum," the trial court granted probation subject to certain terms and conditions, including defendant's payment of $6,000 in attorney fees for "his legal representation." The trial court simply stated without further discussion: "I'm also going to order that the defendant pay for the cost of his legal representation, and I'm going to make that $6,000 dollars. You can pay that through the court's installment process." Defendant's trial counsel did not object to this award.
Section 987.8 authorizes the court to order a defendant reimburse the county for some or all of the costs of his defense. (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1420.) At the time of defendant's May 2017 sentencing, section 987.8, former subdivision (b) provided in relevant part: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." Upon determining that the defendant does have "the present ability to pay all or a part of the cost" of legal assistance, "the court shall set the amount to be reimbursed and order the defendant to pay the sum . . . in the manner in which the court believes reasonable and compatible with the defendant's financial ability." (§ 987.8, former subd. (e)(5), now subd. (e)(2).)
In People v. Aguilar (2015) 60 Cal.4th 862, 864 (Aguilar), the Supreme Court held "defendant's failure to challenge the fees in the trial court precludes him from doing so on appeal." Aguilar specifically found failure to object to a fee imposed under section 987.8 forfeited the right to challenge that fee on appeal. (Aguilar, at p. 866.) In so doing, it rejected that the procedures in section 987.8 distinguished a fee award challenge from the forfeiture rule articulated in People v. McCullough (2013) 56 Cal.4th 589 (McCullough). (Aguilar, supra, at p. 866.) Further, the People v. Trujillo (2015) 60 Cal.4th 850, 858-860 (Trujillo) analysis incorporated by reference by the Aguilar court (Aguilar, at p. 866) demonstrates that it is incumbent upon the defendant to himself invoke section 987.8's procedural protections under pain of forfeiture (Aguilar, at p. 866).
As explained in Trujillo, " 'Given that imposition of a fee is of much less moment than imposition of sentence, and that the goals advanced by judicial forfeiture [were equally relevant in the fee context,] we [see] no reason . . . to conclude that the rule permitting challenges made to the sufficiency of the evidence to support a judgment for the first time on appeal "should apply to a finding of" ability to pay [fees] . . . .' " (Trujillo, supra, 60 Cal.4th at p. 857, quoting McCullough, supra, 56 Cal.4th at p. 599.)
Like Aguilar, defendant here never asked for a section 987.8, subdivision (b) hearing. (Aguilar, supra, 60 Cal.4th at pp. 867-868.) Further, his trial court presided over a jury trial and thus was in a position (like Aguilar) to determine whether the legal services provided were equal to the amount awarded by it. (Id. at p. 869 [trial court's presiding over the trial placed it in the position to implicitly determine "counsel rendered legal services costing at least equal the amount of fees imposed"].)
Defendant nonetheless argues his counsel's failure to object should be excused because that failure may be attributable to a conflict of interest held by his counsel. Aguilar expressly exempted this issue from its decision, stating "[t]his case does not present, and we therefore do not address, the question whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part. (See, e.g., People v. Viray (2005) 134 Cal.App.4th 1186, 1216-1217.)" (Aguilar, supra, 60 Cal.4th at p. 868, fn. 4.)
People v. Viray (2005) 134 Cal.App.4th 1186, 1215 (Viray) recognized forfeiture of an appellate challenge to an attorney fee reimbursement order cannot "properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees," given the "patent conflict of interest." (Italics omitted.) The Viray court suggested it may be inequitable to find forfeiture based on an attorney's failure to object to his own fees; the conflict of interest between the attorney and the client's pecuniary interests militates against a finding of forfeiture. (Id. at pp. 1215-1216.) Notably, the defense counsel in Viray expressly requested the fees awarded. (Id. at p. 1215.)
Here, however, we find no such patent conflict of interest, and thus, defendant's case falls outside of any exception that may remain under the Viray logic after Aguilar. Unlike counsel in Viray, defendant's trial counsel did not request the fee award; the trial court awarded the fees sua sponte. Refusing to apply forfeiture under these circumstances is consistent with the authorities distinguished by the Viray court. (Viray, supra, 134 Cal.App.4th at pp. 1214-1215.)
To the extent language within Viray may support a broader rule imposing a blanket prohibition on forfeiture to a fee challenge if those fees go to the attorney representing a defendant at the sentencing hearing and/or his employer, regardless of whether they were requested (Viray, supra, 134 Cal.App.4th at pp. 1215-1216), we decline to so hold.
As a practical matter, the reimbursement of fees in this case would go to the county and not the public defender, who will be paid whether or not defendant separately pays for his services. (§ 987.8, subd. (e).) Further, rules of professional conduct require competent representation and prohibit attorney action in contravention of the client's best interests. (State Bar Rules Prof. Conduct, rules 3-110 [duty to act competently], 3-310 [duty to avoid interests adverse to client].) In a post-Aguilar world, something more than mere concurrent representation and fee award is required to avoid forfeiture. The converse would risk the exception swallowing the rule.
We do not reach whether the Viray exception premised upon failure to object "attributable to a conflict of interest on trial counsel's part" remains viable where the fees are expressly requested by counsel or where a conflict of interest is otherwise manifest on the record. (See Aguilar, supra, 60 Cal.4th at p. 868, fn 4.) --------
Finally, as recognized in Aguilar, the imposition of forfeiture here does not leave defendant without recourse because he " '[a]t any time during the pendency of the judgment [ordering payment of attorney fees], . . . may petition the rendering court to modify or vacate its previous judgment on the grounds of a change in circumstances with regard to the defendant's ability to pay the judgment.' " (Aguilar, supra, 60 Cal.4th at p. 868, quoting § 987.8, subd. (h).)
We therefore find defendant's challenge to the award of attorney fees forfeited.
3.0 The Interest Condition Must Be Stricken
The parties rightly concur that the interest condition included in the clerk's minutes, but not imposed by the trial court's oral pronouncement of sentence, must be stricken. (People v. Zackery (2007) 147 Cal.App.4th 380, 388.)
4.0 The Restitution Award to Victim AM/PM
Both parties concur that the trial court should have orally imposed the stipulated amount of restitution for victim AM/PM, which is noted in a minute order. The People request the correction of this omission, which violates section 1202.4, subdivision (b). This section requires imposition of victim restitution unless the court "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).) We agree this error must be corrected. (§ 1202.46 [recognizing the district attorney may request correction "of a sentence when the sentence is invalid due to the omission of a restitution order or fine pursuant to Section 1202.4"]; People v. Moreno (2003) 108 Cal.App.4th 1, 10 ["An invalid or unauthorized sentence is subject to correction whenever it comes to the court's attention."].)
DISPOSITION
The trial court is directed to (1) prepare amended minutes of the May 22, 2017 sentencing hearing striking the imposition of interest and (2) exercise its discretion in accordance with sections 1202.4 and 1202.46 regarding the restitution award to victim AM/PM. The judgment is otherwise affirmed.
BUTZ, Acting P. J. I concur: MAURO, J. Renner, J., Dissent.
I concur in the majority opinion except for part 2.0 of the Discussion, from which I respectfully dissent. I disagree with the majority's conclusion that defendant has forfeited his attorneys' fee challenge.
The trial court violated Penal Code section 987.8 when it ordered defendant to reimburse the public defender for defense costs without conducting a noticed hearing on defendant's ability to pay. (Pen. Code, § 987.8, former subd. (b).) The People concede the record does not support a conclusion defendant had the ability to pay his attorney fees. The majority finds this error to be forfeited because defendant's trial counsel did not object when the trial court awarded his office fees.
The majority opinion concludes "defendant's case falls outside of any exception that may remain under the Viray logic after Aguilar." (Maj. opn. ante, at p. 10.) I disagree with the suggestion that People v. Aguilar (2015) 60 Cal.4th 862 had any impact on the People v. Viray (2005) 134 Cal.App.4th 1186 line of cases because our Supreme Court expressly declined to address the issue in Aguilar: "[W]e therefore do not address, the question whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part." (Aguilar, supra, at p. 868, fn. 4.)
Nor am I persuaded that the present case is distinguishable in terms of the conflict of interest presented. Defense counsel requested the reduction of "fines to the statutory minimum," but failed to object to a $6,000 award for the cost of defendant's legal representation. Counsel's conflict of interest is a reasonable explanation for the discrepancy, given the agreement that the record does not support a conclusion defendant had the ability to pay. He was unemployed at the time of his arrest. At the time of sentencing, he was 20 years old and had not completed his high school education. I would remand for a hearing consistent with the requirements of the Penal Code. Accordingly, I respectfully dissent from part 2.0.
RENNER, J.