Opinion
B294552
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND WEBB, Defendant and Appellant.
Katharine Eileen Greenebaum, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Blake Armstrong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA468703) APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Affirmed. Katharine Eileen Greenebaum, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.
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Raymond Webb appeals from a 2018 conviction of criminal threats and vandalism. On appeal, Webb challenges the sufficiency of the evidence to support the jury's conclusion that the two crimes were hate crimes. He also contends the trial court violated his due process when it denied his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to strike a prior conviction from 1991, sentenced him to the high terms for the crimes, and failed to consider striking the five-year enhancement imposed under Penal Code section 667, subdivision (a)(1). Finally, Webb contends the trial court violated his due process by imposing assessments and fines without conducting a hearing to determine his ability to pay, consistent with People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finding no error, we affirm.
Further statutory references are to the Penal Code.
BACKGROUND
On the morning of June 6, 2018, Luis and Humberto Cruz and another coworker began cutting a tree on a property at 7621 Figueroa Street. As they worked, two men—at least one of whom had an axe and a knife—attacked Luis and Humberto by, among other things, hitting Luis in the face and stabbing Humberto in the head. During the attack, Webb emerged from his van, which was parked on the property, grabbed a bat, and joined the other two attackers in chasing Luis and Humberto. As Luis and Humberto ran from the property, Webb screamed at them that he would kill them if they came back.
When they reached the edge of the property, Luis and Humberto looked back to see Webb and at least one of the other attackers breaking the windows out of Luis's pickup truck, hitting the truck with the bat and an axe, and slashing the truck's tires. As Humberto called the police, the attackers fled. After the police arrived, Luis showed them photographs of the attackers he had taken with his phone. As police were investigating, Webb returned to the property and Luis identified him for police. After police arrested Webb and put him in their car, he yelled at Luis, "Hey Mexicans! I (unintelligible) your truck!" He later referred to Luis and Humberto as "some Mexican wetbacks that don't even got a . . . green card."
The People filed an information on July 30, 2018, alleging five counts against Webb. Count one alleged that Webb assaulted Humberto with a deadly weapon. Count two alleged that Webb assaulted Humberto by means of force likely to produce great bodily injury. Count three alleged that Webb assaulted Luis by means of force likely to produce great bodily injury. Count four alleged that Webb criminally threatened Humberto. And Count five alleged that Webb vandalized Luis's truck. The information alleged that each of the charges was also a hate crime under section 422.75, subdivision (b). The information further alleged that Webb had suffered a prior conviction for robbery in Nebraska in 1991, which qualified as a serious or violent felony under various Penal Code sections.
The case was tried to a jury in September and October 2018. After the People rested, the trial court granted Webb's motion to dismiss count one under section 1118.1. The jury was unable to reach a verdict as to counts two and three, and the trial court declared a mistrial on those counts. The jury found Webb guilty of counts four and five—criminal threats and vandalism—and found true the allegations that each of the counts was committed as a hate crime and was committed "voluntarily and in concert with others." The trial court found the prior convictions allegations true after a court trial.
Webb moved to strike the prior conviction under Romero, supra, 13 Cal.4th 497. The People's sentencing memorandum recommended a sentence of eight years four months if the trial court granted the motion, or nine years eight months if the trial court denied the motion. The trial court denied Webb's Romero motion and sentenced him to 14 years in state prison. The court selected the high term of three years for count four doubled to six years under section 1170.12, three years for the hate crime in concert with another person allegation under section 422.75, subdivision (b), five years for the prior conviction under section 667, subdivision (a)(1), and an additional concurrent three years for the hate crime allegation under section 422.75, subdivision (a). The trial court further sentenced Webb to the high term for count five—three years—to run concurrently with the sentence on count four. Finally, the trial court ordered Webb to pay several assessments and fines without conducting an ability to pay hearing.
At the sentencing hearing, the trial court acknowledged the recent passage of Senate Bill No. 1393, which "amended . . . sections 667 and 1386 to provide trial courts discretion to strike five-year sentencing enhancements based on prior serious felony convictions under section 667, subdivision (a)(1)." (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) The trial court concluded that it did not have discretion (in December 2018) to strike the enhancement under section 667, subdivision (a)(1), "and furthermore, given the facts of this case and [Webb's] aggravated criminal history . . . , the [trial] court would not exercise discretion to strike the five-year prior" after the law changed in 2019.
Webb filed a timely notice of appeal.
DISCUSSION
A. Hate Crime Evidence
" 'Hate crime' means a criminal act committed, in whole or in part, because of . . . [¶] . . . [¶] [n]ationality[,] [¶] [or r]ace or ethnicity," among other "actual or perceived characteristics of the victim." (§ 422.55, subd. (a).) To support the hate crime enhancement in section 422.75, "the bias motivation must have been a cause in fact of the offense, and when multiple concurrent causes exist, the bias motivation must have been a substantial factor in bringing about the offense." (People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741.)
Webb challenges the sufficiency of the evidence to support the jury's conclusion that Webb's crimes were hate crimes. When an appellant challenges the sufficiency of the evidence to support a criminal conviction, "we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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. Stanley (1995) 10 Cal.4th 764, 792.)
After he was arrested, Webb made several specific and pointed references to the victims' perceived nationality. Yelling at Luis and Humberto, Webb yelled, "Hey Mexicans! Hey! I (unintelligible) your truck! Nigga. I ([u]nintelligble) your truck, bitch." He told officers, "Take me to jail because of some Mexican wetbacks that don't even got a motherfucking green card," and "These Mexicans came over and did bullshit today and now they're gonna try to come out but they set out felony vandalism I ain't touched none of them, I ain't touch their truck or none of that."
In In re Joshua H. (1993) 13 Cal.App.4th 1734, 1753, the court acknowledged that "a defendant's words may be used to prove he or she intentionally selected the victim on the basis of the victim's status," but qualified that statement by explaining that " 'the state cannot use evidence that the defendant has bigoted beliefs or has made bigoted statements unrelated to the particular crime. . . . The statute requires the state to show evidence of bigotry relating directly to the defendant's intentional selection of this particular victim upon whom to commit the charged crime." Accordingly, Webb argues that he "did not express any racial animus specifically towards the victims." Webb contends his statements were merely "all of the insulting names he could think of at the moment."
Webb referred specifically to the perceived nationality of Luis and Humberto Cruz when he screamed racial slurs at them from the back of a police car. It would have been reasonable for the jury to infer the bigoted statements Webb made related directly to the victims here.
Webb's argument implies that because the statements were made after the crimes were committed that they cannot be evidence of Webb's motivation to commit the crime. Webb argues that because he did not scream bigoted slurs at the victims as he was vandalizing their property and threatening to kill them, there is no evidence his action was motivated by his bigotry. Defendants do not always reveal why they are committing crimes as they commit them, or even after. Here, the jurors had the benefit of Webb's words while he was sitting in the patrol vehicle shortly after the incident, and could reasonably have concluded that his actions were motivated by the animus he expressed toward the victims. That he said the things he said after he committed his crimes and not while he was committing them is of no consequence. Substantial evidence supports the jury's conclusion that Webb's crimes were hate crimes.
B. Due Process & Abuse of Discretion Contentions
Webb contends the trial court violated his right to due process and abused its discretion by denying his Romero motion, sentencing him to the high terms for criminal threats and vandalism, and by failing to consider striking the five-year enhancement imposed under section 667, subdivision (a)(1). Webb bundles these three issues and couches his argument in due process terms (without citing any authority that would support doing so) based on the apparent premise that a 14-year sentence is "so unreasonable that it violates his due process right to a fair sentence that is commensurate with his criminal record."
In exercising its discretion under Romero to "strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law," the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [statutory] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) "In exercising its discretion under section 1385, the [trial] court should consider the nature and circumstances of the defendant's current crimes, the defendant's prior convictions, and the particulars of his or her background, character, and prospects." (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.)
The court created an extensive record when it denied Webb's Romero motion and sentenced him. In denying the Romero motion, the trial court stated: "I have considered the request carefully. There's a couple of things that stand out about the case and about Mr. Webb's criminal history that are aggravating and troubling and that I think persuade me that the Legislature and the electorate did not envision this case in its facts and history as one that falls within Romero. [¶] The criminal history as it's laid out in the probation officer's report on pages 7 through 10 I would consider to be aggravated. It started with the robbery that is a strike offense in the summer of 1990, and he was discharged from that in September of 1992. And from that date going forward, approximately every one or two years he picked up new arrests and convictions, including prison sentences. [¶] . . . It's true that some of those that were felonies at the time he was convicted would now be misdemeanors if he were arrested and convicted on them today. But the criminal history shows four pages of the probation officer's report which is just conviction after conviction after conviction, some less serious, others more serious. Just a continuous or almost continuous course of conduct involving drugs, thefts, misdemeanors, pandering for prostitution and the like, Vehicle Code section convictions, trespass and the like. That's troubling to me, and I think it probably takes it out of an appropriate grant of Romero discretion given that his life since that 1990 conviction in Nebraska has not been blameless. The opposite is the case.
"Secondly, the facts of the instant case are troubling as well, and part of that will be the basis for sentencing decisions. But there was a—the facts of the case as they came out at trial, there was a fury and a violence that reflected danger to the victims, danger to the community, danger to himself, great risk of danger. [¶] So both the instant offense and the criminal history I would consider to be aggravated. So I acknowledge, understand, and see the fact that the strike offense goes all the way back to 1990, and therefore it is remote in time. But for the reasons I have just indicated, the court's view, this case is not an appropriate case for the grant of Romero discretion."
Additionally, the trial court made it clear that he did not have the discretion to strike the five-year enhancement under section 667, subdivision (a)(1). Defendant's argument here ignores that the trial court had no discretion at the time to strike the five-year enhancement and fails to analyze that in terms of its due process contentions. Nevertheless, the trial court explained that "the court would not exercise discretion to strike the five-year prior if and as the law changes next year. The testimony at trial presented a serious danger to those around Mr. Webb, that he has a lengthy criminal history as reflected in the probation officer's report, that he was on summary probation on cases when he committed those crimes, that he had been to state prison previously, and that a lengthy sentence is necessary to protect the people in this case." The trial court continued: "That's my rationale on the five-year prior, and it's closely related to the rationale for selecting high term as the base term in this case."
Webb's trial counsel requested that the trial court continue sentencing until after January 1, 2019 if it was inclined to strike the five-year prior under discretion that would vest at the beginning of 2019 under Senate Bill No. 1393. The trial court declined to do so. We consider this further evidence of the trial court's strong thoughts regarding striking the sentencing enhancement.
Regarding its selection of the high terms for Webb's crimes, the court said: The "Court finds the following circumstances in aggravation: the manner in which the crime was carried out indicates planning, sophistication, or professionalism; two, the defendant has engaged in violent conduct that indicates a serious danger to society; three, the defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; four, defendant was on probation, mandatory supervision, post-release community supervision, or parole when the crime was committed. [¶] The court finds there are no circumstances in mitigation."
Webb does not contend that the sentence is somehow unauthorized except that it violates Webb's sense of fairness. Although the sentence is higher than the People's highest recommended sentence, the trial court is not bound by the People's recommendation. Rather, "the trial court often has broad discretion to tailor the sentence to the particular case." (People v. Scott (1994) 9 Cal.4th 331, 349.) "[T]here is no abuse of discretion requiring reversal if there exists a reasonable or fairly debatable justification under the law for the trial court's decision or, alternatively stated, if that decision falls within the permissible range of options set by the applicable legal criteria." (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 957.) Webb has not demonstrated either an abuse of discretion or a violation of his due process. The trial court's statements explaining why it sentenced Webb are reasonable; they clarify that the trial court carefully weighed the Romero factors it was required to weigh, and arrived at a sentence tailored the crime and the various statutory sentencing schemes that affected Webb's sentence.
C. Ability to Pay as Due Process Violation
Webb contends the trial court violated his due process rights by imposing the restitution fine, court operations and criminal conviction assessments and victim restitution without first determining that he had the ability to pay those costs, citing Dueñas, supra, 30 Cal.App.5th 1157. We analyzed Dueñas at length in our opinion in People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres).
In Caceres, we "decline[d] to apply [Dueñas's] broad holding requiring trial courts in all cases to determine a defendant's ability to pay before imposing court assessments or restitution fines." (Caceres, supra, 39 Cal.App.5th at p. 928.) "We need not decide whether Dueñas was correctly decided as applied to its facts," we said, "because it is evident that those facts, as Dueñas characterizes them, are not present here. More specifically, in the Dueñas court's view, Dueñas lost her driver's license because she was too poor to pay her juvenile citations, then continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as 'cascading consequences' stemming from 'a series of criminal proceedings driven by, and contributing to, [a defendant's] poverty.' [Citation.] [¶] In contrast, Caceres's offense, criminal threats, on its face is not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' [Citation.] A person may avoid making criminal threats regardless of his or her financial circumstances, and the imposition of $370 in fees and fines will not impede Caceres's ability to avoid making criminal threats in the future. [¶] As set forth above, to the extent Caceres cannot pay the imposed costs and is subject to a civil judgment, we are not persuaded that such a consequence violates due process." (Id. at pp. 928-929.)
We find no meaningful distinction between this case and Caceres. As in Caceres, the trial court did not violate Webb's due process rights by imposing the assessments, restitution fine, and victim restitution without first ascertaining his ability to pay them.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, Acting P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------