Opinion
D074164
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WILLIAM BOLLACKER, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE371050) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed as modified with limited remand. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Joseph William Bollacker appeals after a jury convicted him of attempted murder and assault with a firearm and found true the personal firearm use enhancement allegations associated with those counts.
Bollacker challenges his conviction for attempted murder, arguing that the trial court erred in instructing the jury with CALCRIM No. 3474, which relates to when the right to use force in self-defense ends. Bollacker also contends that the trial court abused its discretion in declining to dismiss the firearm use enhancements found true pursuant to section 12022.53, subdivision (c) and section 12022.5, subdivision (a), arguing that the trial court's decision was arbitrary and failed to take into consideration a number of relevant factors.
In addition, Bollacker argues that the trial court's imposition of various fines and fees, without any consideration of Bollacker's ability to pay those fines and fees, violated his due process rights under the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, Bollacker asserts that the trial court miscalculated his presentence custody credit by one day, and he seeks a correction of the abstract of judgment.
With the exception of Bollacker's contention regarding the trial court's miscalculation of his presentence custody credit, an error that the People concede, we find no merit to Bollacker's arguments on appeal. We therefore remand to the trial court for the limited purpose of modifying the judgment to reflect a total award of 361 days of presentence custody credit. We affirm the judgment as so modified.
II.
FACTUAL AND PROCEDURAL HISTORY
A. Factual history
Bollacker's sister A. and the victim, C.P., had recently begun dating when the incident occurred on May 18, 2017. C.P., who was 18 years old at the time, and A. met online. Bollacker, who was 25 years old, did not approve of A.'s relationship with C.P. Prior to the date of the incident, Bollacker and C.P. had never met, but they had exchanged insulting, hostile texts about a week earlier.
On the day of the incident, A. and Bollacker had gone out to get something to eat. A. became annoyed with Bollacker and drove him back to their home where they lived with their parents. A. then left to pick up C.P. C.P. was initially reluctant to go with A. to her house, but A. told him that her father had given her permission to have C.P. come over.
A. and C.P. arrived at A.'s home at around 6:00 that evening. As the two were going to A.'s bedroom, Bollacker came out of his bedroom and immediately attacked C.P. According to C.P., Bollacker swung at him, grabbed him and turned him around. Bollacker is 6' tall and weighed about 200 pounds at the time; C.P. is 5'10" and weighed about 160 pounds.
C.P. attempted to fight back, but Bollacker threw him against a wall and fell on top of him. When interviewed later about the incident, Bollacker estimated that he had hit C.P. with "like ten good shots [to] the face." C.P. told Bollacker to stop, said that they did not have to do this, and told Bollacker that he could just let C.P. walk away. C.P. also asked A. for help, saying, " 'Get him off me. Do something to get him off me.' " Bollacker told investigators that he recalled C.P. saying, "[A.], make him stop. Make him stop. I don't want to break anything."
Bollacker eventually "g[ot] tired" and "just wanted [C.P.] to leave." He "let [C.P.] go," and intended to "lead him out" of A.'s room, telling C.P. to leave, but when Bollacker let go of C.P., A. and C.P. went into A's bedroom and locked the door.
Bollacker retrieved a gun and returned to A.'s locked bedroom door, where he demanded that someone open the door. When no one opened the door, Bollacker kicked a hole in it, displayed the gun through the hole that he had made and said, " 'Get out.' " According to C.P., Bollacker threatened to shoot C.P. if C.P. did not leave.
In a written statement A. made on the day of the incident, she stated that Bollacker threatened to shoot C.P. if he did not leave. At trial, however, she testified that Bollacker displayed the weapon and kept repeating only the phrases " 'Get out' " or " 'Get out of my house.' "
While this was happening, C.P. grabbed a lamp and was calling 911. Apart from the lamp, C.P. was unarmed.
A recording of C.P.'s 911 call captured the sounds of Bollacker ordering C.P. out of the house, and both A. and C.P. telling Bollacker that they were going to leave. As A. and C.P. left the apartment, Bollacker followed them. A. and C.P. went to the front door of the apartment, which was on the second floor of the apartment complex, exited the apartment and went down the stairs. While on the stairs, C.P. said something to Bollacker that suggested that he was going to "come back for" Bollacker.
The 911 operator was trying to get an address from C.P. C.P. asked A. for her address, and A. can be heard telling him to "just go."
At this point, several neighbors in the apartment complex and families who were playing in a nearby playground saw Bollacker point his gun at C.P. and heard Bollacker tell A. to move out of the way. A. told C.P. to run. Ten-year-old Y.S. had been playing soccer with some friends near the playground. After Y.S. heard someone screaming, he saw Bollacker standing in the doorway of the apartment holding a gun while A. and C.P. were heading toward the parking lot. Y.S. watched Bollacker extend his hands out, holding the gun, and pull the trigger. Y.S. heard two shots and also heard people screaming. A friend of Y.S.'s mother ran to him and the two ran away to the friend's home.
J.M., a 15-year-old who was in the area, saw Bollacker arguing with A. and C.P. near Bollacker's upstairs apartment. J.M. watched as A. and C.P. turned and headed down the stairs, while Bollacker followed with a gun. J.M. then heard a gunshot, and ran in the other direction.
R.Y., who lived three doors down from Bollacker's apartment, heard and saw Bollacker as he chased A. and C.P. R.Y. testified that despite A.'s pleas that Bollacker stop, Bollacker took aim and fired at C. P. R.Y. described seeing Bollacker "pull[ ] out his gun" near the parking lot. Bollacker then held the gun with his arms extended and his hands clasped around it. She saw C.P. run over to get behind a car as Bollacker started to shoot. She witnessed Bollacker "tr[y] to shoot [C.P.] again." R.Y. recalled hearing two or three more shots being fired as she made her way to her apartment to check on her children.
R.U. was playing with her grandchild at the playground when she heard arguing coming from Bollacker's apartment. She then heard shots and turned around to see Bollacker coming down the steps and firing a gun as he followed C.P. and A. R.U. grabbed her grandchild and another neighbor girl whom she did not know and ran with the children because she was afraid. R.U. estimated that she had heard four shots.
A. testified that Bollacker was at the top of the stairs holding a gun as she and C.P. went down the stairs. Bollacker told A. to move, and at that point she looked back and saw that Bollacker had both of his hands on the gun and was pointing the gun at them. A. told C.P. to keep going. When they reached some mailboxes, she handed C.P. her phone and told him to run. Bollacker ran down the stairs toward the mailboxes. A. told him to stop and to calm down. Bollacker "stopped, and he aimed, and he shot." At this point, C.P. was running through the cars in the parking lot. A. testified that Bollacker paused after the first shot, but then fired two more shots at C.P. After firing three shots, Bollacker turned and ran back to his apartment.
Police officers arrived on the scene and arrested Bollacker. While he was being transported to the police station, Bollacker made a number of spontaneous statements about the incident. For example, Bollacker commented:
"So what are they doing right now? 'Cause I can tell you everything that happened. So what's there to investigate? Those people don't know. All of those people outside of my house, they don't know. I
know. And of course, [A.] and her boyfriend are going to lie 'cause that's what they are. They're liars. Just - just so they don't get in trouble."
Bollacker claimed that it was C.P. who had caused the problems:
"I'm going to report this kid for being in my house, swinging on me, and then picking up a lamp, not getting out when I got a gun pulled on him, and then when he leaves, he's going to - he threatens me and says I'll come back for you. Well, then right there I think you know what, you better take his life. That's the way it is, man. You guys made this happen. I didn't make this happen. I don't make dumb shit happen."
Bollacker was angry with C.P., despite the fact that when C.P. arrived at the apartment that day, he "didn't say anything." Instead, according to Bollacker, "I say get the fuck out of my house. He's already in the house. He is - I say get out of my house. I don't know what he says. I really didn't hear what he said. He might have said something. [A.] was like oh, calm down. Nothing's wrong. That is what she was saying."
Bollacker contended that C.P. "started [the] fight" in the apartment. Bollacker explained to the officers, "Well, that's what I'm saying, and he would not listen. So then I go towards him, like I wasn't - it might have looked threatening to him. I don't know what I was going to do. I was probably going to attack him to be quite honest, but I have every right to do that. He's in my house. He doesn't have to be attacking me, but he swung on me 'cause I guess he thought I was gonna hit him 'cause I was going towards him to grab him out."
Bollacker admitted that he had retrieved a gun and displayed it to C.P., insisting that he was angry because C.P. would not do what he wanted C.P. to do:
"That's why I pulled a fucking gun because I was hitting him hard. He was not going down. And he acted like it wasn't hurting him. He was talking to [A.] the whole time I'm punching him in the fucking face. And then I fucking leave the room, and he locks it. I'm saying leave my house, leave my house now. He is like no, no. And like what the fuck? Then I kicked the door down. My foot goes right through the door, and I am like stuck. I am like oh, shit. Now he is going to grab my foot. I've got the gun in my hand. So I put the gun through the hole, point it at him, and then he sees it. He is on the - then he grabs his phone like a little girl and starts calling the cops. Oh, he's got a gun. Why don't you just get the fuck out of my house? I would have jumped out of that god damn window, if I was you. Stupid son of a bitch. I should have shot him right in my house right there. I wish I would have 'cause I'd still be innocent."
After suggesting that C.P. "could have easily just started whooping my ass," Bollacker stated, "But I don't care. I was whooping his ass." Bollacker continued, "He was crying like a bitch. Telling [A.] stop, stop, make him stop. Why didn't he make me stop? He was fighting back. He was trying his hardest."
Bollacker also admitted firing the gun at C.P., stating, "I know I fired a gun, so what? So fucking what? That's my right. I had every right to do that. Yes, I did, officer. You fire your weapon. What makes you more right than me? Nothing."
When a police officer suggested that Bollacker could have called the police if he felt threatened by C.P., Bollacker said, "No, I don't. I don't call the police." He added, " 'Cause I was in the fucking moment. He's over here in my house. He's not leaving. I'm saying get out, get out, get out. I'm making him leave. [A.'s] walking with him, and he's oh, I'll be back like trying to be - like why can't he just fucking shut the fuck up and lose the war, bitch? So I fucking shot at him. That's why."
Later, Bollacker repeated that he had been justified in firing a weapon at C.P. because C.P. had not listened to him and had made him angry. Bollacker described how he had ordered C.P. out of the apartment, and how the two began to physically fight. He then described how, after he let C.P. go, C.P. and A. went into her bedroom and locked the door. In response, Bollacker kicked a hole in the door and pointed a gun in C.P.'s direction. Bollacker complained to the officers that C.P. called the police at that point: "He starts calling, he starts calling the cops. And I'm just telling him to leave, 'Get out, get out.' I have the gun pointed at him. Like what kind of idiot would stay in someone's house when you got a gun pointed at him?" Bollacker also complained about the fact that when C.P. left, he said to Bollacker, " 'I'll be back.' " Bollacker explained, "And then he, he finally starts leaving, walking out, then he says, 'I'll be back.' And then that's when I got pissed off, 'cause I don't know what he means by that. Is he going to grab a gun right now? That's a threat. When you say, 'I'll be back,' and I have a gun pointed on him. But what kind of idiot says - what kind of idiot would, would say that? What - like, he's a, he's a troublemaker, and [A.'s] a troublemaker."
Later, Bollacker conceded, "Yeah, I didn't have to shoot that gun, but you know what, I just did. Because that's the way life is supposed to be. You're not supposed to just fucking comply with everyone, even when they - 'cause they're wrong. I comply with what's right."
During this interview, Bollacker admitted that C.P. had been "running away" and that Bollacker "start[ed] chasing him." He estimated that he was about 50 feet behind C.P. when he fired the first round at C.P. Bollacker said, "I tried to hit him, but like right when I went to shoot, he, he like zig zagged." Bollacker was aiming at "center mass" on C.P. After Bollacker fired the first round, C.P. was "scared, and he starts running behind the cars, but I start running towards the car too, and he realizes he can't stay there (unintelligible), or he's going to get shot. So then he darts back that way, and once he gets right in the open street where I have a clear shot, I shoot two rounds." When asked whether, in hindsight, he thought that returning to his apartment and calling the police "would have been the more appropriate response," Bollacker responded, "No, . . . '[c]ause I think what I did was right, and I have every right to do that." B. Procedural history
A jury found Bollacker guilty of premeditated and deliberate attempted murder (Pen. Code, §§ 664, 187, subd. (a), 189; count 1) and assault with a firearm (§ 245, subd. (a); count 2). The jury found true the personal firearm use enhancements alleged with respect to each count (§§ 12022.53, subd. (c), 12022.5, subd. (a)).
Further statutory references are to the Penal Code unless otherwise indicated.
Bollacker moved to dismiss the personal firearm use enhancements, but the trial court denied the motion and sentenced Bollacker to an indeterminate term of life with the possibility of parole as to count 1, plus a consecutive determinate term of 20 years for the firearm use enhancement connected with that count. Pursuant to section 654, the court stayed imposition of sentence on count two and the attached personal firearm use enhancement.
Bollacker filed a timely notice of appeal.
III.
DISCUSSION
A. Bollacker forfeited his contentions regarding CALCRIM No. 3474, but, regardless, they are without merit
Bollacker raises two challenges to the trial court's instructing the jury with CALCRIM No. 3474, which advises the jury that the right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. Bollacker first contends that the instruction was "inapplicable" because, he argues, "it suggested to the jury that withdrawal alone could negate the right to use force, even if the attacker continued to pose a danger." Bollacker claims, in the alternative, that the court should have modified the instruction "to use the conjunctive 'and' rather than the disjunctive 'or' to reflect that an attacker . . . must both withdraw and no longer appear capable of inflicting any injury, in order for the right to use force can end [sic]." (Boldface omitted.)
In addition to instructing the jury on the elements of the offenses with which Bollacker was charged, as well as lesser included offenses, the trial court instructed the jury with CALCRIM No. 505 (justifiable attempted homicide: self-defense) and CALCRIM No. 3470 (right to self-defense against an assault). Bollacker does not raise any challenge to these instructions. Rather, he takes issue only with the court's instructing with CALCRIM No. 3474. As given to the jury, this instruction provided: "The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends."
For example, the court instructed the jury using CALCRIM Nos. 600 [attempted murder], 601 [premeditation and deliberation], 522 [effect of alleged provocation on premeditation], 875 [assault with a firearm], as well as CALCRIM No. 603 [heat of passion attempted voluntary manslaughter as lesser included offense] and CALCRIM No. 604 [attempted voluntary manslaughter based on imperfect self-defense as a lesser included offense].
With respect to the charge of attempted murder, it is clear perfect self-defense is a complete defense to murder, while imperfect self-defense may reduce a murder to voluntary manslaughter. (People v. Moye (2009) 47 Cal.4th 537, 549-550 (Moye).) However, with respect to the charge of assault, the right to perfect self-defense is available, but there is no right to imperfect self-defense. (People v. Minifie (1996) 13 Cal.4th 1055, 1069.)
The People point out that Bollacker did not raise either of the claims that he raises on appeal in the trial court, and that Bollacker has therefore forfeited these contentions. "A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.) Bollacker does not contend that CALCRIM No. 3474 is an inaccurate statement of the law. Rather, he argues that, as given in this case, the instruction "conflicted with the defense's theory of the case." (Boldface and some capitalization omitted.) He further suggests that the court could have modified the instruction to better fit with the facts and defense theory in this case by using an "and" rather than an "or" in the second sentence of the instruction.
A review of the record establishes that the People are correct; although Bollacker objected to CALCRIM No. 3474 on the basis that the evidence did not support giving this instruction, Bollacker did not object on the ground that, under the facts of the case, the wording of the instruction could inappropriately suggest "that withdrawal alone could negate the right to use force, even if the attacker continued to pose a danger." Nor did Bollacker request a modification to the instruction from using the word "or" to the word "and" with respect to that portion of the instruction that provides: "When the attacker withdraws or no longer appears capable of inflicting any injury, the right to use force ends." (Italics added.) There was no discussion regarding the adequacy of the language of the instruction and whether that language sufficiently conveyed the concept of the appropriate duration of the right to self-defense, which is the issue that Bollacker raises on appeal. We therefore conclude that Bollacker has forfeited the contentions that he raises regarding CALCRIM No. 3474. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 165 [trial objection to instruction on ground of insufficient evidence to support giving instruction did not preserve appellate contention that the instruction was an improper pinpoint instruction because it referred to specific evidence].)
However, even if Bollacker had preserved these claims, we would reject them on the merits. A trial court is required to instruct the jury on the general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case. (Moye, supra, 47 Cal.4th at p. 548; People v. Breverman (1998) 19 Cal.4th 142, 154.) However, pinpoint instructions are not required to be given sua sponte; pinpoint instructions must be given only in a situation in which a request has been made and there is evidence that supports the theory underlying the requested pinpoint instruction. (People v. Lujano (2017) 15 Cal.App.5th 187, 191.)
We review the adequacy of the instructions provided by assessing "whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In doing so, we " ' "consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.)
"[T]he right of self-defense is based upon the appearance of imminent peril to the person attacked. When that danger has passed and the attacker has withdrawn, there can be no justification for the use of further force." (People v. Perez (1970) 12 Cal.App.3d 232, 236 (Perez), italics added; People v. Keys (1944) 62 Cal.App.2d 903, 916 ["The law of self-defense is based on the reasonable appearance of imminent peril of death of, or serious bodily injury to the party assailed. When that danger has passed and when the attacker has withdrawn from the combat, the defendant is not justified in pursuing him further and killing him, because the danger is not then imminent, and there is no apparent necessity to kill to prevent the death of or serious bodily injury to the defendant"].) "The right to have a jury instructed on self-defense must be based upon more than imagined facts or inferences [citation], and it is not error in any event to refuse to instruct on a defense theory not supported by the evidence. [Citation.]" (Perez, supra, at p. 236.)
Although Bollacker acknowledges that CALCRIM No. 3474 is a correct statement of the law, and he does not dispute that there was sufficient evidence to support giving the instruction, he maintains that the specific wording of the instruction did not apply in this case because he believed that C.P. "continued to represent a continuing threat where [C.P.] told appellant that he was going to 'come back for [him], fool.' " According to Bollacker, "If a defendant is entitled to pursue his assailant until the danger has passed . . . then a defendant should not lose that right if the facts indicate that the threat is ongoing."
Indeed, there was no dispute in the evidence presented at trial, including Bollacker's own statements to police, regarding the fact that at the time Bollacker shot at C.P., he was running away from Bollacker.
Bollacker relies on People v. Ramirez (2015) 233 Cal.App.4th 940, 943 (Ramirez) for the proposition that in some cases, a self-defense jury instruction that otherwise properly states the law can be erroneous as applied to a particular case. The facts of Ramirez distinguish it from the present case. In Ramirez, the defendant, a member of the street gang known as La Sierra Brown Knights, was convicted of first degree murder. (Id. at pp. 943-944.) The defendant had recently been harassed by members of another gang. In order to end the harassment, the defendant and two others planned to confront a rival gang member and engage in a physical fight. (Ibid.) The defendant did not intend to shoot anyone during the planned altercation. (Ibid.)
Upon arriving at the apartment complex where the defendant and the two other gang members hoped to find a particular rival gang member, the defendant and his companions encountered instead six or seven rival gang members, and a fistfight broke out immediately. (Ramirez, supra, 233 Cal.App.4th at pp. 943-944.) The defendant stepped back from the fighting, and one of the rival members followed him. (Id. at p. 945.) The defendant testified that it looked like the gang member had a gun in his hand, and that this person raised his hand toward the defendant as he approached the defendant. (Ibid.) The defendant pulled his gun from his sweatshirt pocket and fatally shot the other man. (Ibid.) At trial, the court instructed the jury with CALCRIM No. 3472, a self-defense instruction that states, "A person does not have the right to self-defense if he . . . provokes a fight or quarrel with the intent to create an excuse to use force." (Ibid.)
On appeal, the Ramirez court concluded that giving this general instruction was erroneous under the particular circumstances of that case because the instruction "made no allowance for an intent to use only nondeadly force and an adversary's sudden escalation to deadly violence." (Ramirez, supra, 233 Cal.App.4th at p. 945.) The Ramirez court determined that the general instruction was a misstatement of the law as applied in the case before it because, in effect, the instruction stated that if a person plans or provokes a fistfight, he or she cannot use deadly force to defend himself or herself when the opponent suddenly uses a gun or knife. (Id. at p. 947.) As the court explained, a person who plans to start a fistfight or provoke a nondeadly quarrel does not forfeit his right to live. (Id. at p. 943.)
In Ramirez, the appellate court was concerned that the jury could have misunderstood the instruction to mean that an initial aggressor never has the right to self-defense at any point after the first act of aggression takes place. The instruction in that case failed to account for the fact that the defendant in Ramirez intended to engage in a fistfight and shot the rival gang member only after the rival gang member followed him, approached him, and pointed a gun at him. (Ramirez, supra, 233 Cal.App.4th at p. 945.)
Relying on Ramirez, Bollacker argues that it was "his belief that [C.P.] continued to represent a continuing threat where [C.P.] told appellant that he was going to 'come back for you, fool.' " He argues that he should not lose the right to "pursue his assailant until the danger has passed" where the "facts indicate that the threat is ongoing," and complains that it was error to instruct the jury that he had no right of self-defense "if his attacker withdraws, even if his attacker is still capable of inflicting injury."
It is clear from the full text of the instruction that the confusion that might have occurred under the facts of Ramirez could not have occurred in this case. Read in its entirety, CALCRIM No. 3474 accurately apprised the jury of when the right to self-defense terminates. Bollacker appears to focus on, and object to, the second sentence of the instruction, which tells the jury that "the right to use force ends" "[w]hen the attacker withdraws or no longer appears capable of inflicting any injury." However, the first sentence of CALCRIM No. 3474 clearly informs the jury that an individual's right to use force in self-defense continues "as long as the danger exists or reasonably appears to exist."
The full instruction permitted the jury to determine whether the danger to Bollacker continued to exist, or reasonably appeared to exist, at the time Bollacker shot at C.P. Further, the trial court also instructed the jury with CALCRIM No. 505, which advised the jury that Bollacker was entitled, "if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating." (Italics added.) Thus, if the jury agreed with Bollacker's assessment of the situation, concluding that C.P. posed an ongoing "threat" to Bollacker and that the "danger" of death or great bodily injury had not passed, despite the fact that C.P. was running away from Bollacker, the jury was informed that Bollacker's right to use force in self-defense would have continued in those circumstances. When read together, the instructions pertaining to self-defense, including CALCRIM No. 3474, communicated to the jury that Bollacker could pursue a fleeing attacker if the attacker continued to pose an imminent threat of death or great bodily injury. There was thus no instructional error similar to the instructional error in Ramirez.
Bollacker appears to improperly conflate the concepts of self-defense and "imperfect self-defense" when he argues that "CALCRIM No. 3474 as given erroneously told the jury that any claim of self-defense, perfect or imperfect, conclusively ends simply because the attacker physically walks away, even if that attacker is still capable of inflicting injury, or even if the defendant still reasonably or unreasonable believes the same." (Italics omitted.) CALCRIM No. 3474 applies only to self-defense—i.e., perfect self-defense. It does not apply to imperfect self-defense-the reduction of murder, or attempted murder, to voluntary manslaughter, or attempted voluntary manslaughter, based on the actual but unreasonable belief in the need for self-defense: "[T]he 'imperfect self-defense' instruction is not a self-defense instruction at all. It merely removes the element of malice aforethought," thereby reducing the offense from murder to voluntary manslaughter. (People v. Thomas (1990) 219 Cal.App.3d 134, 144-145.) A person has a right to use force within the context of perfect self-defense, but there is no similar "right" to engage in imperfect self-defense, given that a person who acts with an unreasonable belief in the need for self-defense acts unlawfully. Thus, insofar as Bollacker is arguing that giving the standard CALCRIM No. 3474 instruction was error because it undermined his "right" to engage in imperfect self-defense, we reject this contention.
To the extent that Bollacker's challenge to the instruction could be understood to suggest that the threat need not be, nor appear to be, imminent in order to use self-defense, such a suggestion is incorrect. "Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. ' "The peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." . . . [¶] This definition of imminence reflects the great value our society places on human life.' " (In re Christian S. (1994) 7 Cal.4th 768, 783, italics altered.) Thus, if Bollacker's belief that C.P. posed a continuing danger arose from his understanding that C.P. was planning to leave and return at some point in the future to harm Bollacker, such a belief would not support a claim of self-defense.
For this reason we also reject Bollacker's contention that the trial court should have modified the second sentence of CALCRIM No. 3474 to use the conjunctive "and" rather than the disjunctive "or" so that the instruction would have read: "When the attacker withdraws and no longer appears capable of inflicting any injury, the right to use force ends." Appellant argues that "just because an attacker may have withdrawn, does not in all instances mean that he has abandoned the conflict or no longer poses a danger to the defendant." However, as noted, the right to self-defense hinges on the imminence of the danger of death or great bodily injury. Thus, although an attacker may not have "abandoned the conflict" in a broad sense, if the attacker has abandoned the immediate attack and has withdrawn from the altercation such that there remains no immediate threat of death or great bodily injury, the defendant is not entitled to use force. (See In re Christian S., supra, 7 Cal.4th at p. 783.) It is thus clear that even if Bollacker had preserved his objections to CALCRIM No. 3474 on appeal, he could not have demonstrated that the trial court erred in giving this instruction. B. The trial court acted well within its discretion in declining to strike the personal firearm use enhancement
Beyond this, we have serious doubts as to whether, even if the court had erred in giving this instruction, any such error would have been prejudicial. The evidence was overwhelming that at the time Bollacker shot at C.P., C.P. presented no imminent threat, and did not appear to present an imminent threat, to Bollacker, given that C.P. was running away from Bollacker and was unarmed.
Bollacker contends that the trial court abused its discretion in denying his request to dismiss the firearm use enhancements found true pursuant to section 12022.53, subdivision (c) and section 12022.5, subdivision (a). He contends that the trial court's decision was "arbitrary" (boldface and some capitalization omitted) because "consideration of appellant's individual characteristics, his youth and his lack of any criminal record manifestly weighed in favor of striking the enhancements in furtherance of justice" (boldface and some capitalization omitted). We disagree with Bollacker's contention.
1. Additional background
Before sentencing Bollacker, the trial court stated that it had read and considered the probation report, the People's sentencing memorandum, as well as defense counsel's statement in mitigation, which included a number of letters submitted in support of Bollacker by family and friends, and C.P. The court also provided the parties with a tentative ruling indicating that although the court had no discretion concerning the attempted murder conviction, under an amended law, the court did have discretion to strike the firearm use enhancement that was attached to the attempted murder conviction. The court stated that although the court had been "pretty certain" of its position regarding whether to exercise its discretion to dismiss the firearm use enhancement, the court's reading of the letter from C.P., in which C.P. indicated that C.P. harbored no ill will toward Bollacker, caused the court to be "on the border" with respect to whether to strike the enhancement. However, the court expressed that in its view, Bollacker had committed a "heartless" and "extremely violent act," and he appeared to have "zero remorse," and even seemed "kind of like 'I'm sorry I didn't kill the guy.' " The court also mentioned that Bollacker's conduct had endangered a number of innocent people other than the victim.
The trial court did not specifically mention the firearm use enhancement that was attached to the assault conviction during this discussion. As we explain further, the court also had discretion to strike that enhancement, as well.
The court heard from Bollacker's father, who stated that although "it sounds like he [Bollacker] had not been remorseful," his father could "see a change in him," and "he knows better now." Defense counsel then requested that the firearm use enhancement be stricken, and pleaded for the court to show compassion for Bollacker. Counsel noted Bollacker's lack of criminal record, his youth, and the fact that Bollacker continued to have the support of his family and friends who had not expected this type of behavior from him. Counsel indicated that if Bollacker "could go back and do this completely differently, he would . . . ."
The prosecutor argued that Bollacker's conduct was precisely the type of conduct that the firearm use enhancement was intended to address; this was not a situation where appellant discharged a firearm once in a remote area where no one else was placed in danger. Rather, appellant fired multiple shots in a crowded area where children were playing, and he stopped shooting only because the gun jammed. The prosecutor also noted that Bollacker's statements to the probation department demonstrated a continuing lack of remorse, and showed that he viewed himself as " 'the victim.' " The prosecutor highlighted comments that Bollacker made hours after the shooting to officers who had pointed out to him that he could have hit a child. In response, Bollacker stated something to the effect that, " 'If I hit a child, I hit a child. That's just the way it is. Those kids are not nice to me.' "
The totality of Bollacker's comments to police with respect to this issue were: "Those little kids ain't innocent, so I really - if I hit a kid, then I hit a kid. That's the way it was. Those kids aren't nice to me. Those kids are mean. They're not - they're not good people. I don't care if they are kids. So what if they are kids. It doesn't - I'm sorry. That's the way it is, man. The world is a cruel place."
Defense counsel had advised the court that Bollacker did not intend to speak at sentencing, and the court indicated that it would not hold his decision not to speak "against him." However, when the court said that if Bollacker had "any desire to say a word or two, now is the time," Bollacker decided to comment. Among other things, Bollacker stated:
"And I just can't -- I can't say that I feel guilty. I really feel like my life was threatened, and I had to do what I had to do. I really feel that. Even if that gets more time, that's how I feel. That's why I took it to trial. That's why I didn't take that deal. It's more about the principle than the time really."
The court thanked Bollacker and noted the "sincerity of what [he] said," but then stated, "I have to conclude that you don't have a clue, sir, as to what's lawful and what's unlawful. You don't have a clue as to how close you came to taking a lot of innocent lives." Bollacker interjected, "What about my life?"
At this point, the trial court stated:
"It appears to me that you are a continuing danger. To me there is nothing to be gained at this point in time for someone who cranks off rounds in an alleyway at an apartment complex and even sitting here today can't figure out the harm involved. I can't, in good conscience, let him out early. This is obviously something that could easily happen again. I am sorry for the family members. My primary job is to protect the public. I believe that your son, Mr. Bollacker, exhibits a continuing threat. He simply has no idea about what the actual danger is . . . ."
The court thereafter declined to dismiss the firearm use enhancement attendant to the attempted murder count and imposed a 20-year consecutive sentence for that enhancement.
The court stayed all punishment with respect to count 2, including the attendant firearm use enhancement, pursuant to section 654.
2. Analysis
Effective January 1, 2018, section 12022.53, subdivision (h) was amended to allow a trial court to exercise its discretion under section 1385 to strike or dismiss a firearm enhancement at sentencing under section 12022.53. Section 12022.5, subdivision (c) contains similar language granting trial courts discretion to strike or dismiss enhancements imposed under that section.
Section 12022.53, subdivision (h) provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Bollacker contends that a proper consideration of the relevant factors regarding the exercise of discretion under section 1385 supports the striking or dismissal of the firearm use enhancement in this case. A trial court may dismiss a charge under section 1385 "only ' "in furtherance of justice." ' " (People v. Clancey (2013) 56 Cal.4th 562, 580.) The trial court is required to consider " ' "the constitutional rights of the defendant, and the interests of society represented by the People." ' " (Ibid., italics omitted.)
A court's discretionary decision not to dismiss or strike a sentencing enhancement under section 1385 is "subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) "In reviewing [a discretionary sentencing decision] for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citation.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377).)
Given these guiding principles, we conclude that the trial court's decision not to dismiss the firearm use enhancement in this case was not an abuse of discretion. It is clear that the court considered and weighed appropriate factors in deciding this issue. Indeed, despite Bollacker's contention on appeal that the trial court failed to consider his youth and "impulsivity that comes with immaturity," his lack of a criminal record, the existence of "great provocation" and/or his belief in the need for self-defense, or the fact that Bollacker had significant family support, these issues were all included in Bollacker's briefing on his motion to dismiss the enhancement, and the trial court specifically stated that it had considered Bollacker's briefing on the issue.
Further, there is significant support in the record for the court's findings that Bollacker lacked remorse and continued to present a danger to society. In fact, throughout the investigation and even during sentencing, Bollacker continued to repeat that he was justified in shooting the victim, despite the fact that the victim was running away from him at the time Bollacker shot at him, and the fact that Bollacker shot in an area where a large number of other people were present, including children. At sentencing, Bollacker again stated that he was the "victim," repeated that he did not feel guilty for what he had done, and insisted that he had, essentially, done the right thing. The trial court could clearly have found that Bollacker's mindset had not changed over time, and that he was a continuing danger to society. The trial court acted well within reason in concluding that Bollacker demonstrated a lack of remorse and that he posed a continued threat to the public.
Because we conclude that the trial court did not abuse its discretion in declining to strike or dismiss the firearm use enhancements, we also reject Bollacker's argument that the court's decision with respect to the firearm use enhancements constitutes a due process violation. Bollacker relies on inapt legal authority in support of his claim, and there is simply no merit to the contention that the court's decision not to strike or dismiss the firearm use enhancements in this case amounts to a deprivation of due process. C. Bollacker is not entitled to remand for an "ability to pay" hearing because the imposition of fines and fees in this case does not violate due process
Bollacker argues that the trial court's imposition of a $10,000 restitution fine (§ 1202.4), an $80 court security fee (§ 1465.8), a $60 criminal conviction assessment fee (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550.1), as well as the court's imposition and staying of a $10,000 parole revocation restitution fine (§ 1202.45), without any consideration of Bollacker's ability to pay those fines and fees, violated his due process rights under the rule announced in Dueñas, supra, 30 Cal.App.5th at page 1168. Bollacker argues that any waiver or forfeiture doctrines should not apply because it would have been futile to raise this contention in the trial court, since he was sentenced before Dueñas was issued, and that in any event, this court should exercise its discretion to consider arguably forfeited issues where due process rights are implicated. Bollacker requests that this court order the $80 court security fee (§ 11465.8), $60 criminal conviction assessment fee (Gov. Code, § 70373), and $154 criminal justice administration fee (Gov. Code, § 29550.1) stricken. He further requests that this court vacate the $10,000 restitution fine (§ 1202.4) and the $10,000 parole revocation fine (§ 1202.45) and remand the matter for the trial court to hold a hearing at which the prosecution "can show appellant has the ability to pay" these fines.
As an initial matter, the People contend that Bollacker has forfeited this contention by failing to raise the issue in the trial court. We agree that since the trial court imposed a $10,000 restitution fine and Bollacker made no objection that he was unable to pay such a fine, he forfeited any argument that he is unable to pay that fine or the other fees and fines imposed by the court. (See People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41 [defendant had a statutory right to object to imposing of $9,700 of $10,000, and his failure to do so resulted in forfeiture of his claim under Dueñas that all of the assessments and fees imposed without an ability to pay hearing violated his right to due process].)
However, even if Bollacker had not forfeited his contention that the trial court violated his right to due process by imposing these fines and fees without holding a hearing to determine Bollacker's ability to pay them, we would nevertheless reject the contention on its merits. In Dueñas, supra, 30 Cal.App.5th 1157, 1167, the court held that due process precludes a trial court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant in the absence of a determination that the defendant has a "present ability to pay" those assessments and fines. Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under § 1202.4). (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167, 1172.)
More recently, however, another Court of Appeal opinion questioned whether "Dueñas's expansion of the boundaries of due process" to provide an additional "protection not conferred by either [of Dueñas's] foundational pillars" is a "correct interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted Sept. 24, 2019, S258946 (Hicks).) In considering the issue, the Hicks court noted that Dueñas rests on "two strands of due process precedent," (id. at p. 326) the first of which "secures a due process-based right of access to the courts," (id. at p. 325, italics omitted) and the second of which "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness" (ibid.). Hicks explains, neither of these strands "dictate[s]" (id. at p. 326) Dueñas's result. In fact, Dueñas appears to be at odds with the Supreme Court's decision in In re Antazo (1970) 3 Cal.3d 100 (Antazo), on which Dueñas relies for the proposition that "a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Dueñas, supra, 30 Cal.App.5th at p. 1166.) In Antazo, the Court expressly declined to hold that "the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Antazo, supra, at pp. 116, 103-104.) The Hicks court explained, "[b]y adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision)." (Hicks, supra, at p. 327.)
For this reason, and also based on the Hicks court's conclusion that Dueñas "is inconsistent with the purposes and operation of probation," (Hicks, supra, 40 Cal.App.5th at p. 327) the court in Hicks concluded that "due process does not speak to [the] issue [of how best to balance the competing interests of indigent defendants and an operable court and victim restitution system] and . . . Dueñas was wrong to conclude otherwise." (Id. at p. 329.)
We find the Hicks court's analysis of the due process issue to be persuasive, and adopt the holding in Hicks that "[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine" in a defendant's case in the absence of a finding that the defendant is unable to pay the fines and fees imposed. (Hicks, supra, 40 Cal.App.5th at p. 329.) Like the defendant in Hicks, Bollacker has not, to date, been denied access to the courts or been incarcerated as a result of the imposition of these financial obligations. No striking of the imposed fees or remand for an ability to pay hearing would therefore be necessary, even if Bollacker had not forfeited his contention on appeal. D. The abstract of judgment must be corrected to reflect the correct presentence custody credits
Bollacker asserts that the trial court miscalculated his presentence custody credit by one day and requests correction of the abstract of judgment. The People concede that Bollacker is entitled to one more day of actual custody credit than appears on the abstract of judgment, given that he was taken into custody on May 19, 2017, and was sentenced on May 14, 2018, for a total of 361 days of actual custody. The abstract of judgment currently reflects only 360 days of actual custody credit.
We accept the People's concession. We will therefore direct the trial court to correct the abstract of judgment.
IV.
DISPOSITION
We remand for the limited purpose of enabling the trial court to modify the judgment to award defendant a total of 361 days of presentence custody credit. We direct the trial court to prepare an amended abstract of judgment and forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. As so modified, and in all other respects, we affirm the judgment.
AARON, J. I CONCUR: HALLER, Acting P. J. Dato, J., Concurring.
I concur in the result and in the bulk of the reasoning in the majority opinion. I part company with the majority in the way they choose to resolve Joseph William Bollacker's contention based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Without belaboring the point, Dueñas has generated much discussion among California intermediate appellate courts. Ultimately the Supreme Court, or the Legislature, or both will resolve the issue of whether and to what extent fines and fees can or should be imposed on convicted criminal defendants who may be unable realistically to pay them. (See Kopp, supra, 38 Cal.App.5th 47, review granted; Hicks, supra, 40 Cal.App.5th 320, review granted; Assem. Bill 927 (2019-2020 Reg. Sess.).)
Courts have had varying reactions to the Dueñas substantive theory of constitutional law. (Compare, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 329 [rejecting Dueñas due process analysis in its entirety], review granted Nov. 26, 2019, S258946 (Hicks); People v. Kopp (2019) 38 Cal.App.5th 47, 95-97 [accepting a due process challenge to fees, preferring an excessive fines analysis for fines, and remanding for an ability-to-pay hearing], review granted Nov. 13, 2019, S257844 (Kopp); People v. Belloso (2019) 42 Cal.App.5th 647, 661 [reaffirming the Dueñas due process analysis].) They have also disagreed as to the circumstances in which a failure to raise an ability-to-pay argument before Dueñas was decided should result in a forfeiture of the contention. (Compare, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 488-489 with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) --------
In light of the disagreements among our sister courts, the ongoing discussions between coordinate branches of government (see Governor's veto message to Assem. on Assem. Bill No. 927 (Oct. 9, 2019) (2019-2020 Reg. Sess.)), and cognizant of our institutional role, this court has resolved many Dueñas-related appeals by pointing out that even before Dueñas was decided, the relevant statutes often expressly permitted a defendant to challenge most or all of a fine or fee based on inability to pay. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez).) We have emphasized that where a pre-Dueñas defendant had the clear opportunity and sufficient incentive to raise an ability-to-pay challenge but failed to do so, the argument is forfeited under well-established law. (Ibid.)
In this case, as in Gutierrez, the trial court imposed the statutory maximum restitution fine of $10,000. The minimum mandatory fine under Penal Code section 1202.4 is $300, and the statute directs the court to consider a defendant's ability to pay in deciding if a fine in excess of the minimum is warranted. Bollacker thus "had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute ([Pen. Code,] § 1202.4, subd. (c)) expressly permitted such a challenge." (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We need say no more.
Because in my view it is unnecessary to offer extended comment on the doctrinal dispute highlighted in Dueñas and Hicks, I cannot join that portion of the majority opinion.
DATO, J.