Opinion
B294424
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ALEXIS VARGAS, Defendant and Appellant.
Derek K. Kowata, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
THE PEOPLE, Plaintiff and Respondent, v. STEVEN VARGAS, Defendant and Appellant. ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[There is no change in judgment] BY THE COURT:
It is ordered that the opinion filed herein on February 7, 2020 is modified as follows:
On page 11, at the end of the second full paragraph, delete the last sentence, "We consider the argument abandoned."
The Petition for Rehearing is denied.
There is no change in judgment. /s/_________
RUBIN, P. J. /s/_________
MOOR, J. /s/_________
KIM, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA 455374) APPEAL from an order of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed as modified. Derek K. Kowata, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant murdered his girlfriend in front of their two young children. A jury convicted defendant of murder, two counts of child abuse for inflicting mental suffering, and discharging of a firearm with gross negligence. Defendant appeals and argues the trial court committed prejudicial error by failing to instruct on the criminal negligence element for indirectly inflicted child abuse. Defendant also contends that the trial court erred prejudicially by not sua sponte instructing the jury on the lesser included offense of misdemeanor child abuse. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant challenges as unconstitutional the court's imposition of a $10,000 restitution fine and various non-punitive court operations assessments and fees without determining his ability to pay. Lastly, defendant asks that several corrections be made to the abstract of judgment.
We affirm the judgment of conviction. We order the trial court to amend the abstract of judgment with regard to sentencing credits, and to correct the sentences on counts 2 and 3 to conform to the court's oral pronouncement of judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The Murder
Defendant and the victim had been in a relationship for at least a decade and had two children. They shared a bedroom with their children in the victim's mother's apartment. On an afternoon in March 2017, defendant, the victim, and their two children were in their bedroom. Following an argument, defendant removed a semiautomatic handgun from the dresser, and shot the victim in the head at close range, killing her. The couple's two-year-old and seven-year-old children were present in the room. Upon exiting the bedroom, defendant threatened the victim's mother, ran out of the apartment with the gun, and then fired it at least two more times outside.
The children subsequently exited the bedroom in tears and told their grandmother that defendant shot their mother and that she was bleeding. After the shooting, the seven year old was so emotionally upset that she could not talk about what happened, and both children were unable to sleep for weeks afterwards, experiencing nightmares.
Defendant was standing in front of his apartment when police arrived shortly after the shooting. They arrested him with the murder weapon in his possession. 2. Charges and Trial
In a five-count information, the People charged defendant with one count of murder (count 1), two counts of child abuse (Pen. Code, § 273a, subd. (a); counts 2 and 3), one count of assault with a semiautomatic firearm (count 4), and one count of discharging of a firearm with gross negligence (count 5). For count 1, the People alleged that defendant personally and intentionally discharged a firearm. As to counts 2 through 4, the People alleged that defendant personally used a firearm.
All subsequent references are to the Penal Code unless indicated otherwise.
Defendant pleaded not guilty and denied the allegations. At trial, the People introduced testimony from the victim's mother and sister, and from four police officers and a medical examiner. Defendant testified on his own behalf.
The jury found defendant guilty of murder in the first degree and found true the firearm allegations true as to count 1. The jury found defendant guilty as charged in counts 2, 3, and 5, and found true the firearm use allegations for counts 2 and 3. The jury acquitted defendant of count 4.
Defendant was sentenced to prison for 25 years to life for count 1 plus 25 years to life pursuant to section 12022.53, subdivision (d) for the firearm enhancement. The court also imposed a consecutive determinate term of 18 years and 8 months. This term was compromised of the upper term of 6 years for count 2, 2 years and 8 months for count 3 (one-third the mid-term), and 10 years pursuant to section 12022.5, subd. (a). The court credited defendant for 606 actual days of presentence custody. The court also prohibited defendant from owning, purchasing, or possessing firearms or ammunition. The court imposed a $10,000 restitution fine as well as $280 in various assessments. The court also ordered direct restitution to the victim of $6,870.87 with 10 percent interest. Defendant timely appealed.
DISCUSSION
1. The Instructional Error Was Harmless
Defendant contends that the trial court committed prejudicial error by failing to sua sponte instruct the jury on the criminal negligence element of felony child abuse in counts 2 and 3. The People agree that the instruction given, CALCRIM No. 821, was deficient because it failed to include an element of the offense. They argue any error was harmless beyond a reasonable doubt.
"A claim of instructional error is reviewed de novo." (People v. Mitchell (2019) 7 Cal.5th 561, 579.) The trial court has a sua sponte duty to instruct the jury on the general principles of law that are necessary for the jury to understand the charges. (People v. Butler (2010) 187 Cal.App.4th 998, 1013.) A "trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict." (People v. Cole (2004) 33 Cal.4th 1158, 1208.)
In addition to his murder and other convictions, defendant was found guilty of two counts of felony child abuse pursuant to section 273a, subdivision (a). Under the statute, a defendant can commit child abuse either directly or indirectly. (People v. Burton (2006) 143 Cal.App.4th 447, 454.) "When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. [Citations.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence. [Citation.] Criminal negligence is aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. [Citation.] A defendant may be deemed to be criminally negligent if a reasonable person in his position would have been aware of the risk." (Ibid., italics added.) In contrast, for direct endangerment, "[g]eneral criminal intent . . . requires no further mental state beyond willing commission of the act proscribed by law." (People v. Sargent (1999) 19 Cal.4th 1206, 1215.)
Here, the evidence was that defendant father shot and killed the mother in front of their very young children. When a charge of child abuse is based on the mental suffering resulting from a child being exposed to physical abuse by one parent against the other - the situation here - the child abuse is "indirect," and requires a criminal negligence instruction. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1440-1441.)
The jury was instructed with CALCRIM No. 821 as follows: "The defendant is charged in counts 2 and 3 with child abuse, in violation of Penal Code section 273a, subsection (a). [¶] To prove the defendant is guilty of this crime, the People must prove that: [¶] No. 1, the defendant willfully caused or permitted a child to suffer unjustifiable mental suffering; [¶] And, 2, the defendant inflicted pain or suffering on the child or caused or permitted the child to suffer under circumstances or conditions likely to produce great bodily injury. [¶] Someone commits an act willfully when he does it willingly or on purpose."
CALCRIM No. 821 contains several alternatives, depending on the facts of the case. One of the alternatives omitted from the instruction in this case is "[3. The defendant was criminally negligent when (he/she) caused or permitted the child to (suffer/ [or] be injured/ [or] be endangered)(;/.)]" Other parts of the instruction define criminal negligence. The bench notes state that the court must instruct on criminal negligence when is alleged that "defendant committed any indirect acts." (Ibid.)
As given by the trial court, the instruction contained only a general criminal intent instruction, omitting criminal negligence. This was an instructional error of constitutional proportion (People v. Cole, supra, 33 Cal.4th at p. 1208), and is subject to a harmless error analysis under Chapman v. California (1966) 386 U.S. 18.
The evidence was undisputed that defendant was criminally negligent. In the recording of defendant's police interrogation played for the jury, defendant admitted he had shot the victim while she was lying down on one side of their California King bed. Defendant stated his two-year-old son was on the far side of the bed and the seven year old was sitting on a twin bed immediately next to the two year old. The victim's mother also testified that the children were in the bedroom when defendant shot their mother. Following the murder, the seven year old exited the bedroom stating "my daddy shooted my mom. My daddy shooted my mom." The two-year-old son told his grandmother "mommy bleeding." Following her mother's death, the seven year old was so upset she could not talk about the incident. Both children suffered from nightmares and could not sleep for weeks.
Firing a loaded gun at the children's mother and killing her in close proximity to the children is beyond any reasonable doubt aggravated, culpable, gross, or reckless conduct that is such a departure from that of the ordinarily prudent or careful person and is incompatible with a proper regard for human life. (People v. Sargent, supra, 19 Cal.4th at p. 1215.) The trial court's failure to provide the criminal negligence element of CALCRIM No. 821 was harmless beyond a reasonable doubt. 2. The Trial Court Was Not Required to Instruct Sua Sponte on the Lesser Included Misdemeanor Child Abuse Offense
Defendant contends that the trial court committed prejudicial error when it failed to sua sponte instruct on the lesser included offense of misdemeanor child abuse of counts 2 and 3 (felony child abuse). "We review de novo a trial court's failure to instruct on a lesser included offense [citation], and in doing so we view the evidence in the light most favorable to the defendant." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
A trial court has a duty to instruct sua sponte on all lesser included offenses, only where there is substantial evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Misdemeanor child abuse differs from felony child abuse only in that the acts of abuse occur "under circumstances or conditions other than those likely to produce great bodily harm or death." (§ 273a, subd. (b), italics added.) "Likely" as used in the felony child abuse statute section 273a, subdivision (a), "means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) The People do not contest that misdemeanor child abuse is a lesser included offense of felony child abuse.
Here, there is no evidence, let alone substantial evidence from which a jury could conclude that only misdemeanor child abuse occurred. Defendant fired a semiautomatic handgun killing mother, with the children just feet away from mother. It hardly needs further elaboration that the shooting was not misdemeanor child endangerment.
Defendant argues that because he fired the gun a few inches away from the victim's head and did not fire multiple shots, the children were not subjected to circumstances likely to produce great bodily harm or death. The argument borders on the frivolous. Defendant assumes there was no risk of ricochet or that the victim might turn and react to defendant's attack. It assumes that defendant knew he would successfully incapacitate the victim, preventing a struggle. The children's safety was jeopardized when defendant decided to shoot the victim in their immediate presence. In removing the gun from the drawer and firing in close proximity to their mother and to them, defendant intentionally created a serious risk of great bodily harm to the children. No lesser included instruction was required. 3. Defendant Forfeited His Challenge to Imposition of the Fines and Fees
Defendant argues that, under People v. Dueñas, supra, 30 Cal.App.5th 1157, the trial court violated his federal constitutional rights by imposing a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and equal parole revocation fine, a $120 criminal conviction assessment fee (Gov. Code, § 70373), and a $160 court operations fee (Pen. Code, § 1465.8) without first finding that defendant had any ability to pay. We observe that trial counsel did not object to the imposition of any of the fines or fees.
Defendant does not claim error in the court's award of direct restitution to the victim.
The Attorney General responds that defendant has forfeited this argument on appeal by failing to assert his inability to pay in the trial court. We agree on these specific facts.
Defendant's restitution fine was set at $10,000, significantly above the statutory minimum of $300 (§ 1202.4, subd. (b)(1)). The restitution statute expressly allows consideration of ability to pay for a restitution fine that is fixed above the statutory minimum (§ 1202.4, subd. (c)). Defendant was therefore in a position to challenge the fine for an inability to pay. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) Defendant did not and has thus forfeited his challenge to the imposition of the restitution fine. (People v. Avila (2009) 46 Cal.4th 680, 729 [failure to assert that court must consider inability to pay when imposing more than the statutory minimum restitution fine and failure to adduce evidence of inability to pay forfeits challenge].)
The failure to raise an objection to the $10,000 restitution fine, also forfeits his challenge to the remaining fines, fees, and assessments. "As a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Defendant's failure to challenge the $10,000 restitution fine forfeits the claim of error for the additional $280 in assessments. 4. The Abstract of Judgment Must be Amended to Reflect Additional Custody Credit and to Conform to the Court's Oral Pronouncement of Judgment on Counts 2 and 3
Defendant makes three arguments regarding errors in the abstract of judgment. We address them in turn.
a. Custody Credit Error
First, defendant asserts that the judgment must be modified to reflect 616 days of presentence custody; it currently states 606 days. The People agree, as do we.
We order the trial court to correct the abstract of judgment to reflect that defendant is entitled to 616 days of credit for actual time served. (See People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered"].)
b. The Court's Admonition on Prohibition on Owning Weapons Was Proper
Defendant also contends that the abstract of judgment must be amended to delete any reference to defendant being prohibited from owning or possessing firearms and ammunition. Section 29810 bars any convicted felon from owning or possessing such weapons. The minute order for the sentencing hearing indicated that defendant was instructed by the court that by statute he is prohibited from owning, purchasing, receiving, or possessing any firearms, ammunition, or ammunition feeding devices. It does not appear however that the court mentioned the section 29810 prohibitions at the sentencing hearing.
Nothing in the statute requires an oral advisement. As the People point out, in addition to the minute order from the sentencing hearing that contained the admonition, on both December 3, 2018, and January 15, 2019, an abstract of judgment and amended abstracts were filed with attachments prominently displaying in bold type that defendant had been instructed by the court that he is prohibited from involvement with the items listed in section 29810. The record is silent as to whether defendant received either the minute order or the abstracts of judgment but the burden of showing error on appeal is with defendant. After the People in their respondent's brief raised the point of the written advisement, defendant failed to respond to the argument in his reply brief. We consider the argument abandoned.
c. Judgment on Counts 2 and 3 Must Be Corrected
Lastly, defendant asserts that the court made several errors in recording the sentence on counts 2 and 3 in the abstract of judgment. We agree.
For count 2, the court orally imposed the high term of 6 years plus the full high term of 10 years for the section 12022.5 firearm enhancement. The abstract of judgment correctly provides that the sentence for count 2 was the upper term of 6 years, but incorrectly has the box for one-third midterm consecutive sentence checked.
As to count 3, the court imposed one-third the mid-term of 1 year, 4 months (16 months) for the child abuse and one-third the mid-term (16 months) for the section 12022.5 firearm enhancement. The abstract of judgment incorrectly provides that the sentence for count 3 was 2 years and 8 months (32 months). Although the total of 32 months is correct, the abstract should reflect separately the court's sentence on the substantive offense and the enhancement. We order the trial court to correct the abstract of judgment to reflect the judge's oral pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 186-188.)
DISPOSITION
The judgment of conviction is affirmed as modified. The trial court is ordered to prepare and issue an amended abstract of judgment that provides 616 days of custody and corrects the sentences on counts 2 and 3 in accordance with its oral pronouncement. The trial court is to forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation, with a copy to defendant's current counsel of record.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.