Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. A537957, Daniel J. Buckley, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan S. Pithey and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant Francisco Alberto Reyes was charged with murder, but convicted of voluntary manslaughter based upon imperfect self-defense. Challenging certain elements of his sentence, appellant makes the following contentions: the court used facts prohibited by California court rules to impose the upper term for manslaughter; the court abused its discretion in weighing aggravating and mitigating factors to impose the upper term; the upper term was based upon facts not found by a jury beyond a reasonable doubt, violating appellant’s rights under the United States Constitution; the imposition of a parole revocation fine was an ex post facto penalty which must be stricken; the trial court did not have sufficient information to determine an appropriate restitution fine; the court security fee imposed at sentencing violated Penal Code section 3 and the ex post facto clauses of the United States and California Constitutions.
“[I]mperfect self-defense is not a true defense; it is rather ‘a shorthand description’ of one form of the crime of voluntary manslaughter. [Citation.]” It is committed with an “‘honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury[,] negat[ing] malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 883.)
All further statutory references are to the Penal Code, unless otherwise stated.
We hold that while the trial court relied upon one factor prohibited by court rules in imposing the upper term, it also found proper factors, rendering the error harmless; appellant failed to show an abuse of discretion in the court’s balancing of factors in aggravation and mitigation; although one fact considered by the court in imposing the upper term was neither found by the jury nor admitted by appellant, there was no constitutional error, because two other facts -- one admitted and the other found by the jury -- were properly considered; the parole revocation fine must be stricken; appellant has not preserved for review his challenge to the restitution fine; the court security fee did not violate section 3 or the ex post facto clauses of the United States and California Constitutions. We therefore strike the parole revocation fine and affirm the judgment.
BACKGROUND
On May 2, 2006, appellant was charged with the 1986 murder of Hector Rodriguez. The information further alleged that in the commission of the crime, appellant intended to inflict and did personally inflict great bodily injury on the victim, and personally used a firearm. The jury acquitted appellant of murder, found him guilty of the lesser included offense of voluntary manslaughter and found the enhancement allegations to be true. On October 24, 2006, the trial court sentenced appellant to11 years in prison, the upper term for manslaughter, and stayed sentencing on the enhancements. Appellant timely filed a notice of appeal from the judgment.
At trial, appellant’s brother, Roberto Reyes, testified that on July 28, 1986, he drove appellant to see Hector Rodriguez, because appellant’s driver’s license had been suspended. Reyes explained that appellant had paid Rodriguez approximately $300 to pay a traffic ticket for him, and had unsuccessfully tried to get Rodriguez to pay the ticket or return the money. As Reyes described the events, he and appellant both went into Rodriguez’s office, where appellant asked him to “fix” the ticket or return his money. An argument ensued, during which appellant continued to ask for his money and Rodriguez continued to refuse. Appellant became upset when Rodriguez became sarcastic, and Reyes tried to calm both of them, but Rodriguez laughed at appellant and mocked him. Reyes testified that the following events then took place very quickly, almost simultaneously: Rodriguez said he wanted them out of his office and was going to call the police; he spoke in a threatening tone, but did not threaten them; he said something Reyes could not hear, causing appellant to react; this made appellant angrier, and Reyes placed himself between Rodriguez and appellant, trying to calm them; as Rodriguez sat at his desk and began to put his hand into a drawer, and as Reyes tried to hold appellant back, appellant pulled out his gun and shot Rodriguez. As Rodriguez slumped in the chair, appellant said “‘Let’s get out of here,’” and they left in a panic. Reyes testified he dropped appellant off in Baldwin Park, and left him there. Appellant changed his name, and used various names over the next 20 years that he remained a fugitive.
We refer to appellant’s brother, Roberto Reyes, simply as Reyes, and to avoid confusion, we refer to appellant solely as appellant.
After dropping off appellant, Reyes went to band practice at his church, where he told his friend, Daniel Rodriguez, about the shooting. Daniel Rodriguez contacted the police. Detective Reynold Verdugo conducted a search of the victim’s office and desk the day of the shooting, but found no weapon.
Daniel Rodriguez testified that Reyes came into the church that night looking panicked and terrified, and told him about the shooting. Later that evening, at the Reyes family apartment, Daniel thought he saw Reyes putting a nine-millimeter gun into a bag, which he carried out and placed into the trunk of a car. Reyes denied that he moved or removed any guns.
The prosecution’s firearms expert, Deputy Sheriff Edmund Anderson, examined the six expended cartridge casings found at the scene of the shooting, and determined they came from a nine-millimeter semiautomatic weapon. He explained that the trigger of a semiautomatic weapon must be pulled each time a shot is fired. Medical examiner Eugene Carpenter, Jr., testified Rodriguez died from multiple gunshot wounds.
Appellant testified in his defense. He testified there was a warrant out for his arrest due to nonpayment of a traffic ticket, and claimed he could not take care of it himself, because he was claustrophobic and afraid of going to jail. Approximately four weeks before the shooting, a friend told appellant that Rodriguez, who was a notary public, could take care of the ticket, and appellant gave him $250 to do so. After a week, Rodriguez demanded $50 more and told him to return in another week. Appellant testified that when he returned, he saw two frightened-looking young men leaving Rodriguez’s office; they said Rodriguez had stolen money from them and had threatened them. When appellant entered, Rodriguez angrily told him to get out, that he was not in a mood to deal with any matters.
Appellant denied he regularly carried guns, except when he went to target practice. In July 1986, he owned about 12 firearms, which he claimed had all been legally purchased and registered. Appellant claimed he was going to target practice after stopping at Rodriguez’s office, and therefore had two weapons in the car -- a .25-caliber handgun and a nine-millimeter Browning. Appellant claimed he took the Browning with him into Rodriguez’s office because it was an expensive gun and could not be secured in the car, which was a station wagon with a broken rear window and no trunk. He denied he intended to threaten or frighten Rodriguez, and claimed he had forgotten the gun was loaded.
Appellant claimed that he destroyed all of his guns after the shooting, including the one used in the shooting.
Appellant testified he became upset after Rodriguez ignored his greeting. Rodriguez told him he had not paid the ticket, asked appellant whether he was getting tired of checking, laughed and said, “F----g Mexicans just got here, and they think they know the law.” Rodriguez approached appellant, told him he would not return the money and made fun of him in a “schizophrenic” manner -- suddenly laughing, then becoming serious and upset. Appellant claimed he became frightened when Rodriguez ordered them from his office, said the “F word” again, and then, “between his teeth” said, “‘I’m going to kill you.’” Appellant claimed he felt claustrophobic and that he panicked when he saw Rodriguez pulling something from the drawer of his desk at the moment his brother jumped. Appellant testified he pulled out his gun because he thought he and his brother were in danger, and “had to shoot” because he thought Rodriguez was going to kill them both. He claimed he did not remember pulling the trigger, but saw the gun fire five or six times. He claimed he was trembling and feeling phobic, and everything happened very fast. Still frightened that Rodriguez would hurt them, he said to his brother, “‘Let’s go,’” and they left. Appellant changed his name and moved to Bakersfield, where he stayed for six years before returning to El Monte, where he remained for 14 years until his arrest.
DISCUSSION
1. Factors Justifying Upper Term under California Law
Upon finding the circumstances in aggravation outweighed the circumstances in mitigation, the trial court imposed the upper term of imprisonment for voluntary manslaughter. (See Pen. Code, §§ 193, subd. (a), 1170, subd. (a); Cal. Rules of Court, rule 4.420.) In aggravation, the court found the crime involved great violence and great bodily harm, noting that appellant fired six times. Also noting the use of a firearm and the fact that the victim was unarmed, the court found appellant was “obviously engaged in violent conduct which indicates a serious danger to society.” In mitigation, the court found appellant had no prior record or an insignificant prior record.
Appellant contends that some of the reasons for imposing the upper term were improper, resulting in an abuse of discretion requiring reversal. In particular, appellant contends that every voluntary manslaughter involves great violence and great bodily harm, and thus, neither fact can be used as a factor in aggravation to increase a voluntary manslaughter sentence. Appellant also contends the court failed to consider additional factors in mitigation appearing in the probation report and in appellant’s sentencing memorandum.
Respondent contends appellant has not preserved his sentencing issues for review. By failing to object below, a defendant forfeits “the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.)
Appellant counters that he has not forfeited review of the court’s discretion by failing to object, because his sentencing memorandum fully apprised the court of his objection to the upper term. Appellant claims this was sufficient, citing People v. Downey (2000) 82 Cal.App.4th 899, 909, footnote 4 (error in refusing to reinstate probation preserved by argument in favor of reinstatement), and People v. Hoover (2000) 77 Cal.App.4th 1020, 1030-1031 (two-day hearing in which defendant fully apprised trial court of the basis for objection to upper term). However, we find no discussion of improper sentencing factors in the memorandum. The memorandum merely set forth factors for the trial court to consider, arguing that the mitigating factors outweighed the aggravating factors. Assuming arguendo that appellant’s sentencing memorandum is sufficient to preserve his challenge to the trial court’s consideration of certain factors, we find no prejudicial error.
Appellant also relies upon People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1223-1224, in which sentencing issues were not forfeited, because the defendant had been given no meaningful opportunity to object to the court’s reasons. As appellant does not contend that he was given no meaningful opportunity to object, Dorsey is inapposite.
In general, factors which may be used by the sentencing court to impose the upper term include those enumerated in rule 4.421 of the California Rules of Court. Rule 4.421(a) permits the court to consider the fact that the crime involved great violence or great bodily harm, and the fact that the defendant was armed or used a weapon. A fact constituting an element of the crime may not be used to increase the term of punishment. (Cal. Rules of Court, rule 4.420(d).) Thus, great bodily harm is not a proper factor in a manslaughter case, as great bodily injury is inherent in the death of a human being. (People v. Piceno (1987) 195 Cal.App.3d 1353, 1357.) However, great violence may be considered in manslaughter cases, and shooting the victim multiple times shows great violence. (See People v. Nevill (1985) 167 Cal.App.3d 198, 205-206.) Appellant asserts that great violence is an element of manslaughter, but neither case cited as support for this assertion reaches or even discusses that issue. (See, e.g., People v. Piceno, supra, 195 Cal.App.3d 1353; People v. Hill (1994) 23 Cal.App.4th 1566.)
California Rules of Court, rule 4.421(a) also permits considering the use of a weapon as a factor in aggravation, and appellant has not challenged the trial court’s consideration of his use of a firearm.
A single factor in aggravation will justify the imposition of the upper term, and where there remains a proper factor, any error in considering great bodily harm is harmless. (See People v. Osband (1996) 13 Cal.4th 622, 728; People v. Forster (1994) 29 Cal.App.4th 1746, 1758.) “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 492.) As the finding of great violence due to the number of shots was a properly considered factor, we conclude the trial court’s reliance on great bodily injury was harmless, and that it was not reasonably probable that the trial court would have chosen a lesser sentence had it known great bodily harm was an improper factor in aggravation.
Appellant also contends the trial court erred in finding only one circumstance in mitigation -- a nonexistent or insignificant criminal record. He claims the court should also have found he acknowledged wrongdoing at an early stage of the proceedings, and that the crime was committed because of great provocation which was unlikely to recur, because appellant had not committed a violent act during the 20 years before his arrest. (See Cal. Rules of Court, rule 4.423(a)(3) & (b)(3).)
The trial court has broad discretion to make factual findings necessary to its sentencing choice, and we are not authorized to substitute our opinion for that of the trial court absent a clear showing of abuse. (See People v. Scott, supra, 9 Cal.4th at p. 355.) It is appellant’s burden to establish an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Despite this burden, appellant does not refer to the record where there might be evidence requiring a finding in his favor as to additional factors in mitigation. Moreover, our review of the record shows no evidence of great provocation, only rudeness and a gesture that appellant interpreted as reaching for a weapon. Further, far from acknowledging wrongdoing before arrest or at an early stage of the criminal process, appellant did not give a statement to the police until he was arrested after nearly two decades as a fugitive.
We conclude appellant has not met his burden to demonstrate the trial court’s decision was irrational, arbitrary or not “‘grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]” (Alvarez, supra, 14 Cal.4th at p. 977.) Accordingly, we find no abuse of discretion in sentencing appellant to the upper term.
2. Apprendi/ Blakely/ Cunningham Error
Appellant contends his sentence violates his federal constitutional right to due process and a jury trial, because in choosing to impose the upper term, the court relied on factors not found by a jury. (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) The trial court relied on three facts to impose the upper term: the victim was unarmed; appellant shot him six times; and appellant used a firearm.
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham).) In Cunningham, “the high court held that California’s determinate sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt.” (People v. Calhoun (2007) 40 Cal.4th 398, 406.)
The only fact relied upon by the trial court, but not found by the jury or admitted by appellant was the fact that the victim was unarmed. The allegation that appellant used a firearm was submitted to the jury. The jury, having been instructed to find the allegation true only if proven beyond a reasonable doubt, found the allegation to be true. Thus, the trial court’s reliance upon appellant’s use of a firearm was in compliance with constitutional requirements. (Cunningham, supra, 127 S.Ct. at p. 860; People v. Calhoun, supra, 40 Cal.4th at p. 406.) Moreover, appellant admitted the facts underlying the court’s use of great violence as a factor in aggravation, by testifying that he fired the gun at the victim five or six times. Aggravating factors admitted by the defendant need not be tried to a jury. (Blakely, supra, 542 U.S. at p. 303; Apprendi, supra,530 U.S. at p. 488.)
Recently, the California Supreme Court reviewed the requirements of the Sixth Amendment, as explained in Apprendi, Blakely, and Cunningham, and concluded that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___ [p. 13] (Black), fn. omitted; see also People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ (Sandoval).) Thus, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, at p. __ [at p. 11].)
Here, as the trial court relied upon two proper factors, one found by the jury, and the other admitted by appellant, we need not determine whether consideration of a third factor was error. “[T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements . . . .” (Sandoval, supra, ___ Cal.4th at p. __ [at p. 11]; see also Black, supra, ___ Cal.4th at pp. ___ [at pp. 11-13].)
3. Fines
Appellant contends the parole revocation fine must be stricken, as there was no statutory authority for the fine in 1986. Respondent concedes this point, and we agree. Enacted in 1995, section 1202.45 calls for the imposition of a fine upon all convicted persons whose sentence includes a period of parole. (See Stats. 1995, ch. 313, § 6.) Where the underlying crime preceded the enactment of section 1202.45, imposition of a parole revocation fine violates the ex post facto clause of the United States and California Constitutions. (People v. Callejas (2000) 85 Cal.App.4th 667, 678; see U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) The fine will be stricken from the judgment.
Appellant also contends remand is required in order to permit the trial court to reconsider the amount imposed as a restitution fine pursuant to section 1202.4. He posits that because the court was unaware that there was no authority in 1986 for the imposition of a parole revocation fine, the court may also have been unaware the minimum restitution fine in 1986 was not $200, as it is today, but $100. Had the court been aware of the true minimum, appellant argues, it might have exercised its discretion to impose less than $200.
See former Government Code section 13967, as amended by Statutes 1984, chapter 1340, section 1. The maximum possible fine was $10,000. (See, e.g., People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1090.)
Appellant did not bring this issue to the attention of the trial court. A failure to make a timely and meaningful objection in the trial court results in the forfeiture of any challenge to discretionary sentencing choices. (People v. Scott, supra, 9 Cal.4th at pp. 350-351.) A narrow exception to this rule exists for fines that are unauthorized -- where the fines or the amount could not validly be imposed under any circumstance. (People v. Smith (2001) 24 Cal.4th 849, 853; see People v. Tillman (2000) 22 Cal.4th 300, 303.) However, imposition of a restitution fine in excess of the minimum, but less than the maximum, is an authorized, discretionary sentencing choice. (People v. Romero (1985) 167 Cal.App.3d 1148, 1152-1153.) Thus, by failing to object or otherwise bring the issue to the attention of the trial court, appellant has not preserved the issue for review. (See People v. Scott, supra, 9 Cal.4th at pp. 350-351.)
4. Court Security Fee
Appellant challenges the imposition of the $20 court security fee, claiming that section 1465.8, the statute authorizing it, was applied retroactively in violation of the ex post facto clauses of the United States and California Constitutions, as well as section 3, which provides that no part of the Penal Code is retroactive, unless expressly so declared. Whether the court security fee is subject to the ex post facto clauses was thoroughly analyzed in People v. Wallace (2004) 120 Cal.App.4th 867 (Wallace). After reviewing the legislative history of the statute, the court concluded the fee was not subject to the ex post facto clauses, because “the Legislature imposed the $20 fee for a nonpunitive purpose,” and no evidence showed the amount of the fee to be “so punitive in its purpose or effect as to override the Legislature’s treatment of it as a nonpunitive measure.” (Id. at pp. 876 & 878; also cf. People v. Rivera (1998) 65 Cal.App.4th 705, 708-712 [jail booking and classification fees].)
Appellant’s comparison to a fine surcharge found to be punitive in People v. High (2004) 119 Cal.App.4th 1192, is inapt. There, the court held the state court facilities construction fee to be a penalty, not a fee, as it was “calculated on ‘every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses’” at rates which increased with the seriousness of the underlying offense, thereby promoting the traditional aims of punishment and deterrence. (Id. at p. 1198; Gov. Code, § 70372.)
On the question of ex post facto application, we agree with the analysis of Wallace, and conclude the court security fee is not subject to the ex post facto clauses. Wallace did not resolve the issue of retroactivity under section 3. Section 3 is a rule of statutory construction which codifies the common law rule “that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively.” (People v. Durbin (1966) 64 Cal.2d 474, 478.) “A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]” (People v. Hayes (1989) 49 Cal.3d 1260, 1274.)
Both the ex post facto and section 3 retroactivity issues are now before the California Supreme Court in People v. Carmichael, review granted May 10, 2006, S141415 (fee cannot be imposed retroactively), and People v. Alford, review granted May 10, 2006, S142508 (purpose and impact of the law shows legislative intent that section 1465.8 apply retroactively).
We must determine first whether the imposition of the court security fee upon appellant was a retroactive application of section 1465.8. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) Section 1465.8, subdivision (a)(1), provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” “In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.] A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ [Citation.]” (People v. Grant (1999) 20 Cal.4th 150, 157.)
Respondent contends the last act or event necessary to trigger application of section 1465.8 was appellant’s conviction, not the commission of the crime; thus, imposition of the fee was not a retroactive application of the statute. We agree. Section 1465.8 became effective in 2003, after appellant committed the crime, but prior to conviction. (See Stats. 2003, ch. 159, § 25.) The imposition of the fee upon every conviction expresses a legislative intent that the last act or event necessary to trigger application of the statute is the conviction, not the commission, of the crime. (See People v. Bailey (2002) 101 Cal.App.4th 238, 243 [gang registration requirement as a condition of probation not a retroactive application, as it applied to persons convicted]; see also People v. Adames (1997) 54 Cal.App.4th 198, 214 (Adames).)
In Adames, we held that ordering an AIDS test, as required under section 1202.1, was not a retroactive application of that section, although the defendant was convicted of an offense that did not trigger the test requirement at the time it was committed. (See Adames, supra, 54 Cal.App.4th at p. 214.) The test was not a retroactive application, because it did not “‘change the legal consequences of criminal behavior to the detriment of’” the defendant. (Ibid., quoting Tapia v. Superior Court, supra, 53 Cal.3d at p. 297.) Here, the facts more forcefully show the statute was not applied retroactively. First, the fee is not punitive. (Wallace, supra, 120 Cal.App.4th at pp. 876, 878.) In addition, it is a true fee, not a fine, as its imposition does not depend upon the commission of any particular offense, and is not increased with the severity of the offense. (See People v. High, supra, 119 Cal.App.4th at p. 1198.) Further, its purpose relates directly to the defendant’s use of the court, and the fees collected are deposited into the Trial Court Trust Fund, to be administered by the Judicial Council. (§ 1465.8, subds. (a), (d) & (e); see People v. Rivera, supra,65 Cal.App.4th at p. 710 [booking and jail classification fees based on jail administrative costs].) Finally, it applies to all persons convicted of a crime or a nonparking traffic violation. (§ 1465.8, subd. (a).) We conclude that the Legislature intended section 1465.8 to apply to all persons convicted after it became operative, regardless of when the offense was committed, and that the security fee imposed on appellant was not a retroactive application of the statute.
DISPOSITION
The parole revocation fine of $200, imposed pursuant to section 1202.45, is stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., WILLHITE, J.