Opinion
B295003
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RAUL A LA TORRE, Defendant and Appellant.
Robert K. Schwarz, 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, Acting Assistant Attorney General, Chung L. Mar and Gary A. Lieberman, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA467719) APPEAL from a judgment of the Superior Court of Los Angeles County, Renee F. Korn, Judge. Affirmed. Robert K. Schwarz, 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, Acting Assistant Attorney General, Chung L. Mar and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Raul A la Torre was convicted by a jury of assault with a deadly weapon. He contends his conviction must be reversed because the trial court committed instructional error, and the imposition of fines and assessments, without a determination of his ability to pay, violated his due process rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
On April 30, 2018, at approximately 3:30 p.m., R.L. and another man, hereinafter referred to as John Doe, were seated in the waiting area of a Los Angeles car wash. J.M. was also present outside of the waiting area. A la Torre, who appeared to be intoxicated, entered the waiting area and asked Doe and R.L. for money. Doe became angry and argued with A la Torre. A la Torre said, "Where are you from?" Doe replied, "Nowhere. Just get out of here." A la Torre replied, "I'm gonna fuck you up. You know where I'm from?" Doe then shoved A la Torre, who fell to the ground. A la Torre said, "You'll see. You will see," and angrily left the car wash.
Doe's name is not reflected in the record, and apparently was not provided to police.
Approximately five minutes later, A la Torre returned to the car wash waiting area with a "very large," eight- to ten-inch kitchen knife in his hand. Doe said, "Oh shit. . . . He has a knife." Doe left the waiting area, and A la Torre followed him around the parking lot with the knife, in what one witness described as a "walking chase." Doe zig-zagged between cars to avoid him. A la Torre got within six to eight feet of Doe, and swung the knife at him. He yelled at Doe, mumbling what appeared to be threats. The chase continued for approximately five minutes. Using his cellular telephone, R.L. recorded a 12-second portion of the incident. An employee grabbed A la Torre and told him to stop. Someone announced that they were calling police, and A la Torre left.
When officers arrived at the car wash, Doe declined to provide any information to them because, in his view, the incident was not serious. Officers detained A la Torre nearby. R.L. provided his video recording to police, and it was played for the jury.
The defense presented no evidence.
2. Procedure
The jury convicted A la Torre of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). In a bifurcated proceeding, A la Torre admitted suffering a prior conviction for making criminal threats (§ 422), a serious felony. The trial court denied the defense request to reduce the offense to a misdemeanor but exercised its discretion to strike the section 667, subdivision (a) serious felony enhancement. It sentenced A la Torre to a term of four years in prison, doubled pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), for a total of eight years. It imposed a $300 restitution fine, a suspended parole revocation restitution fine in the same amount, a $40 court operations assessment, and a $30 criminal conviction assessment. A la Torre timely appealed.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The instructional error was harmless beyond a reasonable doubt
Without objection, the trial court instructed the jury with a former version of CALCRIM No. 875, which provided in pertinent part: "A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (Italics original.) The instructions given did not define what "inherently deadly" meant.
CALCRIM No. 875 listed the elements of the offense as follows: "1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person; [¶] . . . [¶] 5. The defendant did not act in self-defense."
A la Torre argues that CALCRIM No. 875 erroneously allowed the jury to convict him of assault with a deadly weapon if it assumed the kitchen knife was an "inherently deadly" weapon, a legally invalid theory. The People concede the instructional error, but contend it was harmless beyond a reasonable doubt. We agree with the People.
A trial court has the duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Townsel (2016) 63 Cal.4th 25, 58.) We independently determine whether the instructions given correctly stated the law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) Generally, a party may not complain on appeal about an instruction that was legally correct and responsive to the evidence unless he made an appropriate objection. (Id. at p. 1087.) However, we may review any instruction that affects a defendant's substantial rights even when no objection was interposed, an endeavor that requires an examination of the merits of the claim, at least to the extent of ascertaining whether prejudicial error occurred. (Ibid.; § 1259.)
A la Torre's contention is governed by our Supreme Court's recent decision in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat). There, the defendant was charged with assault with a deadly weapon, a box cutter. As here, the trial court instructed with the former version of CALCRIM No. 875. (Aledamat, at pp. 3-4.) Aledamat held that although the instruction accurately stated the law, the evidence did not support it. (Id. at p. 6.) Only a few objects, " 'such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such.' " (Ibid.) Others, like box cutters and knives, are "deadly weapons only if used in a way that makes them deadly weapons." (Id. at pp. 3, 6.) "Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons." (Id. at p. 6.) Accordingly, Aledamat explained, the trial court "erred in presenting the jury with two theories by which it could find the box cutter a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct." (Id. at p. 7.) Aledamat compels the conclusion that in the instant matter, CALCRIM No. 875 was likewise erroneous to the extent it allowed the jury to find the knife A la Torre used was an inherently deadly weapon.
However, just as in Aledamat, the instructional error was manifestly harmless. Aledamat clarified that the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24, applies when the jury is instructed on the "legally erroneous" theory at issue here. (Aledamat, supra, 8 Cal.5th at pp. 3, 7-9, 13.) Applying that standard, we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances," we determine that the error was harmless beyond a reasonable doubt. (Id. at p. 13.)
In Aledamat, the defendant approached a woman who was working at a lunch truck and asked for her phone number. She declined to provide it, explaining that she was married. Later the defendant approached the woman's husband—who owned the food truck—and told him he wished to have sexual relations with the woman. As the husband was removing his apron, defendant pulled a box cutter from his pocket, extended the blade, and, from a distance of three or four feet away, thrust the blade at the husband at waist level, stating, " 'I'll kill you.' " (Id. at p. 4.)
The Aledamat majority found the instructional error harmless for a variety of reasons, most of which are present here. First, Aledamat reasoned that the language of CALCRIM No. 875—juxtaposing " 'inherently deadly' " with " 'used in such a way that it is capable of causing injury and likely to cause death or . . . great bodily injury' "—at "least indicates what the 'inherently deadly' language was driving at." (Id. at pp. 13-14.)
Second, the parties' arguments supported the conclusion that the error was harmless. In Aledamat, the prosecutor stated that the box cutter was inherently deadly, but neither he nor defense counsel suggested there were two separate ways the jury could decide whether it was a deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 14.) "Defense counsel argued that defendant did not use the box cutter in a way that would probably result in the application of force, that is, that defendant did not assault the victim at all—an argument the jury necessarily rejected when it found defendant guilty of that crime. But counsel never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon. Although defense counsel did not expressly concede that the box cutter was a deadly weapon, he did not contest the point." (Id. at p.14.)
Parallel arguments were made here. The prosecutor argued A la Torre was guilty of the offense because he chased Doe with a large knife. He explained that in an assault with a deadly weapon, the weapon could be "a knife or some other deadly weapon, a baseball bat, an ax, anything that can be used as a deadly weapon." He argued that the "crime of assault doesn't require that someone even get touched" but could occur if "someone has a knife and they try to stab another person." In short, the prosecutor focused on how the weapon was used. He never suggested there were two separate theories the jury could use to determine whether the knife qualified as a deadly weapon, and—unlike in Aledamat—never suggested the knife was inherently deadly. Defense counsel made the identical argument as in Aledamat—that there was no assault. Counsel argued that there was no credible evidence A la Torre stabbed at, swung at, or pointed the knife at Doe, and never got closer than several feet away from him. Therefore, he urged, there was no showing A la Torre committed an act that would directly and probably have resulted in the application of force against Doe. As in Aledamat, counsel never suggested the knife was not a deadly weapon. Indeed, here counsel conceded that it was. He argued that A la Torre was guilty only of drawing or exhibiting a "deadly weapon" in a rude or threatening manner, in violation of section 417.
Tellingly, Aledamat reasoned that it would have been futile for defense counsel there to contest the point, based on the record: "A box cutter is not inherently deadly because it is not designed for that purpose. But if used to assault someone, i.e., used as a weapon, a box cutter is potentially deadly even if not designed for that purpose. [Citation.] Counsel could readily believe it would be pointless for him to argue that even if . . . the jury found defendant assaulted the victim with the box cutter, it was not a deadly weapon. This is particularly so in light of defendant's statement, 'I'll kill you.' " (Aledamat, supra, 8 Cal.5th at p. 14.) The same is true here. While the kitchen knife was not inherently deadly as a matter of law, when used to assault Doe, it was potentially deadly. A la Torre followed Doe around the car wash with the knife in a threatening manner, shouting at him, after threatening to "fuck [him] up." A jury would be hard pressed to conclude the knife depicted in the video—when used in the manner here—was anything but a deadly weapon.
Finally, Aledamat reasoned: "[U]nder the instructions, the jury necessarily found the following: (1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person. [¶] Additionally, the jury must have considered the term " 'inherently deadly' " to mean something. . . . [T]he theoretical risk is that, because the court did not define the term, the jury might have applied its common understanding to find the box cutter deadly because it is sharp and used for cutting. [Citations.] But if the jury did so, it would necessarily find the box cutter deadly in the colloquial sense of the term—i.e., readily capable of inflicting deadly harm—and that defendant used it as a weapon. [¶] 'No reasonable jury that made all of these findings could have failed to find' that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury. [Citation.]" (Aledamat, supra, 8 Cal.5th at p. 15.) The same analysis applies here.
A la Torre attempts to distinguish Aledamat on the basis that there, the defendant thrust the box cutter at the victim, who was only three to four feet away from him. Here, in contrast, the evidence was disputed as to whether A la Torre actually slashed or swung the knife at the victim; A la Torre was six to eight feet from Doe; and during the chase, a car often separated the two men. We do not consider these differences significant. Whether or not A la Torre actually swung the knife, the evidence was clear that he retrieved a knife after getting in a dispute with the victim, threatened to "fuck . . . up" the victim, and followed him around with the knife. The salient point here, as in Aledamat, is that the knife was being used as a weapon, rather than for an innocent purpose.
J.M. testified that A la Torre swung the knife at Doe, and he informed police of this fact. R.L. could not recall whether A la Torre raised the knife toward Doe, and did not believe he made slashing motions with it; however, he used the knife in a threatening manner. One of the responding officers testified that none of the witnesses reported that A la Torre raised the knife. In the very brief video clip, A la Torre holds the knife by his side.
A la Torre also maintains that in Aledamat, the court reasoned it was unlikely the jury would "simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it." (Aledamat, supra, 8 Cal.5th at p. 14.) Here, he argues, the knife was larger than a box cutter and the prosecutor emphasized its size during argument, impliedly asserting it was inherently deadly. We do not think the jury would have gleaned this message from the prosecutor's statements. But in any event, the error in Aledamat was harmless beyond a reasonable doubt even though the prosecutor there expressly characterized the box cutter as an inherently deadly weapon. The prosecutor here did not do so, and his argument can hardly be characterized as more damaging than that in Aledamat.
In Aledamat, the defendant was charged not only with assault with a deadly weapon, but also with making a criminal threat with a deadly weapon enhancement. (Aledamat, supra, 8 Cal.5th at p. 4.) Regarding the weapon enhancement, the court gave CALCRIM No. 3145. That instruction stated that to determine whether an object was a deadly weapon, the jury should consider the surrounding circumstances, including when and where the object was possessed and any evidence indicating whether it would be used for a dangerous, rather than a harmless, purpose. (Aledamat, at pp. 5-6, 14.) As one factor supporting its harmless error analysis, Aledamat reasoned that, given CALCRIM No. 3145, the jury was unlikely to simply view the box cutter as inherently deadly without considering the circumstances of defendant's use. (Aledamat, at p. 14.) Here, the fact CALCRIM No. 3145 was not given is of no moment because, as we explain, numerous other factors support the conclusion that the error was harmless beyond a reasonable doubt.
2. Imposition of fines and assessments
Without objection, at sentencing the trial court imposed a restitution fine of $300 (§ 1202.4, sub. (b)), a suspended parole revocation restitution fine in the same amount (§ 1202.45), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8, subd. (a)(1)). The court observed that these amounts could be taken out of A la Torre's prison earnings. (See People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted November 13, 2019, S257844 [trial court may appropriately consider wages appellant will earn in prison].) Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), A la Torre avers that he is indigent, and imposition of the fines and assessments, without a determination of his ability to pay, violated due process. A la Torre asserts that we should vacate the assessments and stay the restitution fines unless and until the prosecution proves he has the present ability to pay them. We disagree.
Unlike the defendant in Dueñas, A la Torre did not object below on the ground of his inability to pay. Generally, where a defendant has failed to object to a restitution fine or court fees on this ground, the issue is forfeited on appeal. (People v. Avila (2009) 46 Cal.4th 680, 729; People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Rodriguez (2019) 40 Cal.App.5th 194, 206.) We agree with our colleagues in Division Eight that this general rule applies to the restitution fines and the assessments imposed here under the Penal and Government codes. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; but see People v. Castellano (2019) 33 Cal.App.5th 485, 489 .) Contrary to A la Torre's argument, imposition of the fines and assessments does not present a "pure question of law." Even assuming arguendo that his ability to pay must be considered, such a determination is inherently factual. (See Frandsen, at p. 1153; People v. Lowery (2020) 43 Cal.App.5th 1046, 1053-1054.)
Even if the issue had been preserved for review, it fails on the merits. Our colleagues in Division Two recently held that Dueñas was wrongly decided. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted November 26, 2019, S258946; see also People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069.) We observe that the California Supreme Court is currently considering whether a court must evaluate a defendant's ability to pay before imposing or executing fines, fees, and assessments. (Kopp, supra, 38 Cal.App.5th 47, review granted.) Pending further guidance from our Supreme Court, however, we agree with Hicks.
In any event, Dueñas does not apply here. Dueñas was the disabled, unemployed, often homeless mother of two young children. She was convicted of vehicle offenses. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The situation in which A la Torre has put himself does not implicate the same due process concerns at issue in the factually unique Dueñas case. A la Torre, unlike Dueñas, does not face incarceration because of an inability to pay assessments and fines. (See People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [concluding that "the due process analysis in Dueñas does not justify extending its holding beyond" the "extreme facts" presented therein].) A la Torre is in prison because he committed assault with a deadly weapon. Even if he does not pay the assessments and fines, there is no indication he will suffer the cascading and potentially devastating consequences Dueñas faced. (See Dueñas, at p. 1163.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.