Opinion
B292888
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. FELIPE JESUS SOTO, Defendant and Appellant.
Elizabeth Richardson-Royer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA072797) APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Affirmed. Elizabeth Richardson-Royer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In a jury trial, defendant Filipe Jesus Soto was convicted of two counts of assaulting a peace officer with force likely to produce great bodily injury and two counts of resisting an executive officer. On appeal, he has requested that we independently review the trial court's hearing under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Following our review, we find no error. Defendant also asserts that his convictions on the assault counts were not supported by substantial evidence, because there was insufficient evidence that defendant's punches and kicks constituted force likely to produce great bodily injury. We find that the evidence supports the conviction.
Defendant further contends that the trial court erred in imposing certain fines and fees under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We find that defendant has forfeited this claim by failing to object in the trial court to the imposition of fines above the statutory minimum. Finally, defendant and the Attorney General agree that the abstract of judgment should be modified to state the correct date of defendant's sentencing hearing. We therefore affirm the judgment, and order the trial court to correct the abstract of judgment to reflect the sentencing hearing date of September 24, 2018.
FACTUAL AND PROCEDURAL BACKGROUND
The District Attorney for the County of Los Angeles (the People) filed an information charging defendant with two counts of felony assault of a peace officer with force likely to produce great bodily injury (Pen. Code, § 245, subd. (c), counts 1 and 2), and two counts of resisting an executive officer (§ 69, counts 3 and 4). The information also alleged that counts 1 and 2 were serious felonies under section 1192.7, subdivision (c). The information further alleged that defendant had been convicted of prior strikes (§§ 667, subd. (b)-(j), 1170.12), and had prison priors (§ 667.5, subd. (b)). Defendant pled not guilty and the case proceeded to a jury trial. The following evidence was presented.
All further statutory references are to the Penal Code unless otherwise indicated.
A. Prosecution evidence
Los Angeles Sheriff's Department (LASD) detective Jeremy Esswein testified that he was on patrol duty on the afternoon of December 13, 2017. He was working with a partner, detective Joshua Epstein, who also testified. They were both wearing Class A LASD uniforms, consisting of a tan shirt, green pants, a "hard badge," and LASD insignia. They were traveling in a black-and-white patrol vehicle. The deputies received a call concerning a family disturbance in Lancaster. They had been to the same location earlier in the day for an incident in which defendant had locked himself in the house and refused to come out. Esswein testified, "[B]ased off the totality of the circumstances then, we were ordered to leave the residence, and this was now our second time back."
Esswein testified that when he and Epstein arrived at the scene, they found "defendant and another male Hispanic adult who turned out to be his father basically . . . having a wrestling match in the front, in the intersection of the street right in front of their house." Epstein characterized it as "a physical altercation," in which the men "were almost wrestling standing up." As the patrol vehicle approached the men, "they stopped fighting each other and the defendant walked toward" the deputies' vehicle. As Esswein and Epstein got out of the vehicle, defendant shouted, "Why?" and "turned around and ran away from us," toward the side of the family's house.
Esswein broadcast over the radio that they had encountered a suspect who was running from them. Esswein and Epstein had "formed a tactical plan" that Epstein would use non-lethal force, a Taser, if necessary, and Esswein "was going to be his backup on lethal if it needed to go that way." Esswein and Epstein entered the side yard of the house opposite of the side defendant had entered, through a gate, to try to see where defendant was going. Epstein had his Taser drawn. They saw defendant's head peek up from behind a trash pile in the back yard. Defendant's father grabbed him by the back of the shirt and pulled him toward the officers.
Esswein testified that when defendant was five to eight feet in front of Esswein and Epstein, "the defendant broke free of his father's grasp. He yelled, What the fuck are you going to do? and charged toward us." Epstein testified that defendant "took two to three large steps towards us as if he was either coming straight towards me or attempting to run past me." Defendant "was very agitated." The deputies were telling defendant to show his hands and either lie down on the ground or walk slowly toward them. Defendant "wasn't cooperating with our commands," and instead, he yelled and "charged right at us."
Epstein could not safely use the Taser because defendant's father was too close and could have been hit with a Taser dart. Epstein tried to holster his Taser, and grabbed defendant's right arm. Esswein testified, "When Deputy Epstein grabbed his right arm, I then saw the suspect clench his left fist into a ball and try to punch Deputy Epstein in the face." Esswein demonstrated the punch, and the prosecutor described it: "his left hand came back to about nipple line with the balled up fist and punched forward." Defendant's fist was traveling fast, and it missed Epstein's face by one or two inches. Epstein testified that he "had to flinch backwards" to avoid the punch. Esswein responded by punching defendant in the face.
Defendant then kicked Esswein "on the front of my left knee and then he kicked me on the side of my left knee." The kicks were "very hard." Esswein punched defendant again. Defendant dropped to his knees. The deputies were still struggling to control defendant. Esswein grabbed the radio that was attached to his uniform in the middle of his chest, and broadcast that he and Epstein were in a fight with the suspect. Esswein testified that defendant "reached up with his left arm and grabbed my radio off," tearing Esswein's shirt in the process, and "threw the radio to my feet." Defendant then grabbed Epstein's radio and threw it down. Epstein testified that defendant was "struggling very violently," and the deputies "had a really hard time gaining control of him."
Esswein tried to grab defendant's left arm. Esswein testified that defendant "wrapped his leg around my legs," and was "still attempting to punch me in the face with his left hand," so "I punched him in the face again." Defendant fell to the ground, and "put his left hand underneath his body in his waistband area." Esswein thought defendant had a weapon and was reaching for it. Esswein punched defendant one more time; defendant then released his left arm, and Esswein grabbed it. Esswein and Epstein handcuffed defendant. Defendant was still struggling, so Esswein and Epstein were using their body weight to pin defendant down.
Deputy Kip Gruppie arrived, and Esswein testified that defendant "was still kicking my legs." Gruppie put "the hobble," a device that restricts a suspect's leg movements, on defendant. Defendant then stopped fighting, and the deputies were able to get him up and walk him out of the back yard. No weapon was found in defendant's possession. Esswein testified that he and Epstein gave defendant 15 to 20 orders in total, and until the hobble was put on him, defendant did not comply with any of the orders. Epstein also testified that defendant did not follow the numerous orders the deputies gave him.
B. Defense case
Jaime Leyva is defendant's stepfather. Leyva testified that on December 13, 2017 when the sheriff's deputies arrived, he and defendant were not in the street fighting or wrestling; they were in front of the house, arguing. That day, defendant had been shaking, fidgeting, sweating, and mumbling to himself. Defendant was acting aggressive and getting more and more violent.
After the deputies arrived, defendant ran into the back yard. Leyva followed him, and pulled him toward the deputies. The deputies were telling defendant to put his hands up and get on the ground. Leyva did not see defendant swing his fist at the deputies or kick at them. He also testified that the deputies were not aggressive toward defendant, and he did not see a struggle. He did not see a deputy with a Taser drawn. Leyva confirmed that he could see defendant the entire time he was with the police.
Esther Banuelos, defendant's mother, testified that the night before December 13, 2017, defendant did not sleep. In the morning, he was very excited and "unsteadity," and asked Banuelos to take him to the hospital. He was sweating, shaking, and talking to himself; he was acting "crazy" and "aggressive." Banuelos said that the previous day, she "found like a little plastic bag with some kind of powder" in it. Banuelos said she tried to take defendant to the hospital, but he got out of the car on the way there. She was not at the home later in the day when defendant was arrested.
Defendant testified that on the afternoon of December 13, 2017, he was on the front patio of the home, listening to his stepfather, Leyva, telling defendant that he could not stay at the house because there was an outstanding warrant for his arrest. Defendant said he had not slept well for two nights, he was "feeling nervous, terrified a little bit," and, "I kept seeing stuff, and I felt very cold." Defendant said, "I hallucinate a lot. I see things that frighten me . . . and I back away from them." Defendant said he was hallucinating that things from his phone were appearing in person. While defendant was moving around the house because he could not sleep the night before the arrest, Leyva "was getting angry because he was trying to sleep and go to work." Defendant said he had consumed too much caffeine and he had used methamphetamine over the previous three days.
Defendant testified that as soon as he saw the LASD deputies' car pull up, he ran and hopped over a wall into the backyard. He said he ran because he knew he had a warrant for leaving a rehab program, and he was afraid he would be sent to prison. Defendant tried to hide next to an old pigeon coop. Leyva followed him, told him to turn himself in, and grabbed his shirt.
Defendant recalled seeing Esswein, but not Epstein. Esswein said, "Come here," and defendant "put my hands in the air, and I walked towards him with my father holding on to my camouflage." Defendant said he "walked as slow as possible" and he was asking Leyva why he had to go with the deputies. Esswein had been holding a Taser or gun; he holstered it, then grabbed defendant's right arm. Esswein "[g]rabs my hand, turns me around, cuffs me, and struck me like three times in my head" with his left fist. Defendant "hit the ground with my head first. He was on top of me." Esswein "is pushing me into the gravel, like, very angrily." Leyva remained nearby, eight to ten feet away.
Defendant testified that other than running when he first saw the deputies, he did not try to get away. He did not try to swing at or kick the deputies. He did not pull on the deputies' radios. He was not fighting with them, although he may have struggled to get his face out of the gravel when he was on the ground.
On cross-examination, defendant said he was "kind of used to running away from" sheriff's deputies. He had been arrested twice over the past three years. He admitted that Leyva, and perhaps someone else, called 911 earlier in the day. Defendant admitted two prior convictions: unlawful taking or driving a vehicle in 2016 and assault with a deadly weapon in 2017, saying he was "tricked" into pleading no contest for both convictions.
C. Conviction and sentencing
The jury found defendant guilty on count 1, assault on a peace officer as to Epstein (§ 245, subd. (c)); count 2, assault on a peace officer as to Esswein (§ 245, subd. (c)); count 3, resisting an executive officer as to Epstein (§ 69); and count 4, resisting an executive officer as to Esswein (§ 69). Defendant waived a jury trial regarding his prior convictions. The court sentenced defendant to a total of ten years in prison, calculated as follows: On counts 1 and 2, the court imposed the high term of five years doubled to 10 years due to the strike prior, to be served concurrently. On counts 3 and 4, the court imposed the high term of three years, doubled to six years, and stayed under section 654.
The court also imposed various fines and fees, as follows. The court noted that it was exercising its discretion in imposing a lower victim restitution fine of $600, to be paid to the state fund. The court imposed and suspended a parole revocation fine of $600. The court also imposed a $40 court operations assessment per count, for a total of $160, and a $30 criminal conviction assessment per count, for a total of $120.
Defendant timely appealed.
DISCUSSION
A. Pitchess motion
Prior to trial, defendant filed a Pitchess motion seeking complaints against Epstein or Esswein regarding excessive force, fabrication of charges, false arrest, or dishonesty. Defendant also sought exculpatory or impeaching evidence under Brady v. Maryland (1963) 373 U.S. 83. Defendant noted that he disputed the deputies' version of events and asserted that Epstein and Esswein used excessive force. The People opposed the motion, arguing that defendant failed to show good cause for the discovery.
The court partially granted defendant's motion, stating, "I do find good cause to go in camera to review any complaints against Deputy Esswein and Deputy Estein [sic] limited to the area of excessive force with regards to Deputy Esswein only. [¶] I will also review those complaints for any complaints of dishonesty including, but not limited to, false report writing."
At the in camera hearing, a court reporter was present and the custodian of records for the County of Los Angeles was sworn. The custodian testified about his search for relevant documents and the documents he produced. The court reviewed several documents, described each one, and found that none of the documents contained relevant discoverable information. The court ordered the transcript of the hearing sealed.
On appeal, defendant requests that we independently review the court's Pitchess hearing. The Attorney General does not oppose this request. "Pitchess rulings are reviewed for abuse of discretion." (People v. Winbush (2017) 2 Cal.5th 402, 424.)
"When a defendant shows good cause for the discovery of information in an officer's personnel records, the trial court must examine the records in camera to determine if any information should be disclosed." (People v. Winbush, supra, 2 Cal.5th at p. 424.) At the in camera hearing, "[t]he trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . [T]he court can . . . state for the record what documents it examined." (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) An appellate court independently examines the record made by the trial court "to determine whether the trial court abused its discretion in denying a defendant's motion for disclosure of police personnel records." (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
We have reviewed the sealed transcript of the in camera hearing. We conclude that the court complied with the procedural requirements of a Pitchess hearing, including providing an adequate description of the documents provided to it. Defendant asks that we also "perform an independent review of the Pitchess materials themselves to determine whether any disclosures should have been made to the defense." Additional review is not required here. In the transcript of the in camera hearing, the court provided clear, thorough descriptions of each document it reviewed. Where "the court 'state[d] for the record what documents it examined,'" the transcript alone "is adequate for purposes of conducting a meaningful appellate review." (People v. Myles (2012) 53 Cal.4th 1181, 1209.) No additional review is necessary, and the trial court did not abuse its discretion.
B. Sufficiency of the evidence
Defendant asserts that the evidence was insufficient to support a finding of force likely to cause great bodily injury, as required for a conviction under section 245, subdivision (c) (section 245(c)). "In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt." (People v. Jennings (2010) 50 Cal.4th 616, 638.) "We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence." (Id. at pp. 638-639.)
On appeal, defendant asserts that a finding of force likely to produce great bodily injury "require[s] more than a simple punch or kick." He asserts that although such force can be applied by fists or feet, "all cases where courts have found adequate force applied by hands and feet have—without exception—involved something substantially more violent than a mere punch or kick." He cites nine cases from 1924 to 1981 in which the defendants severely beat their victims, causing serious injuries. Although these cases involve assaults, most of them do not consider or decide whether fists or feet constitute force likely to produce great bodily injury. "'It is axiomatic that cases are not authority for propositions not considered.'" (People v. Jennings, supra, 50 Cal.4th at p. 684.)
Defendant cites People v. Roberts (1981) 114 Cal.App.3d 960; People v. Chavez (1968) 268 Cal.App.2d 381; People v. Muir (1966) 244 Cal.App.2d 598; People v. Pierre (1960) 178 Cal.App.2d 585; People v. Kinman (1955) 134 Cal.App.2d 419; People v. Nudo (1940) 38 Cal.App.2d 381; People v. Blake (1933) 129 Cal.App. 196; People v. Kimmerle (1928) 90 Cal.App. 186; People v. Hinshaw (1924) 194 Cal. 1. --------
Defendant also relies on People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel), which stated, "The force likely to produce bodily injury can be found where the attack is made by use of hands or fists." The Supreme Court has also made clear that "the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Indeed, "the cases are legion in holding that an assault by means of force likely to produce great bodily injury may be committed with fists." (People v. Chavez, supra, 268 Cal.App.2d 381, 384.)
Defendant's assertion that something "more" is required, such as serious injury to the victim, is not supported. "[A] powerful punch that misses is an aggravated assault to the same degree as the same punch that lands." (In re Jonathan R. (2016) 3 Cal.App.5th 963, 974.) And McDaniel noted that section 245 "'prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury.'" (McDaniel, supra, 159 Cal.App.4th Id. at p. 748.) "'"The crime . . ., like other assaults may be committed without the infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it."'" (Ibid.)
Here, the evidence supports the jury's finding of force likely to produce great bodily injury. Defendant charged at the deputies, yelling, "What the fuck are you going to do?" He did not obey the deputies' numerous commands. When Epstein grabbed defendant's arm, defendant clenched his left fist into a ball and tried to punch Epstein in the face. Defendant's clenched fist drew back and then punched forward; his fist was traveling fast, and it missed Epstein's face by one or two inches. Epstein said he had to flinch backwards to avoid being punched. Defendant also kicked Esswein twice, hard, on the knee. As the scuffle proceeded, defendant continued to struggle violently, and kept trying to punch Esswein in the face. Defendant continued kicking until another deputy arrived and placed the hobble on defendant's legs.
Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant's punching and kicking constituted force likely to produce great bodily injury. The verdict is therefore supported by substantial evidence. C. Imposition of fines and fees
The trial court imposed several fines and fees. The court noted that it was exercising its discretion in imposing a "lower range" victim restitution fine of $600 under section 1202.4, subdivision (b), to be paid to the state fund. The court imposed and suspended a parole revocation fine of $600 under section 1202.45. The court's minute order stated that these fines were imposed on count 1, the base count. The court also imposed a $40 court operations assessment per count for a total of $160 (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment per count for a total of $120 (Gov. Code, § 70373). Defendant did not object to any of the fines or fees.
On appeal, defendant asserts that imposition of these fines and fees without determining that defendant had the ability to pay them violated his due process rights. Defendant relies on Dueñas, supra, 30 Cal.App.5th 1157, in which Division Seven of this court held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373," and that "the execution of any restitution fine imposed under [section 1202.4] must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) There is currently a split of authority as to whether Dueñas was correctly decided. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322, pet. for review granted Nov. 26, 2019, S258946; People v. Belloso (2019) 42 Cal.App.5th 647, 655 [pet. for review filed Jan. 3, 2020].)
We need not resolve this split in authority, because we agree with the Attorney General that defendant forfeited the issue by failing to object to the imposition of the fines and fees in the trial court. Even before Dueñas, defendants had a statutory right to challenge imposition of a restitution fine above the statutory minimum of $300. Under section 1202.4, a defendant's inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $ 300]." (§ 1202.4, subd. (c).) Here, the court imposed a $600 fine on count 1, and defendant did not object on the basis that he was unable to pay the fine or that he was entitled to present evidence on the issue. "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154, citing People v. Avila (2009) 46 Cal.4th 680, 729.)
Moreover, because defendant did not object to the $600 restitution fine or the $600 parole revocation fine based on his inability to pay them, "he surely would not complain on similar grounds regarding an additional [$280] in fees." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Because defendant did not object to the imposition of fines or fees based on his inability to pay them, his appellate challenge on this basis has been forfeited.
D. Abstract of judgment
According to the reporter's transcript and the court minute order, defendant was sentenced on September 24, 2018. However, the abstract of judgment lists the "date of hearing" as September 27, 2018. Defendant asks that we order the trial court to correct this error on the abstract of judgment, and the Attorney General agrees.
Courts may correct clerical errors at any time, and appellate courts may order an abstract of judgment to be corrected if it does not accurately reflect the proceedings of the sentencing court. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order the trial court to correct the abstract of judgment to reflect the sentencing hearing date of September 24, 2018.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment that reflects the sentencing hearing date of September 24, 2018.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.