Opinion
E066275
12-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL CEJA, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, and Peter Quon, Jr., and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1501078) OPINION APPEAL from the Superior Court of Riverside County. Arjuna T. Saraydarian, Judge. (Retired judge of the Riverside County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, and Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant and appellant Miguel Angel Ceja was convicted of driving under the influence (D.U.I) of drugs and alcohol after being convicted of three or more separate D.U.I. charges (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol concentration of 0.08 percent or above after being convicted of three or more separate D.U.I. charges (Veh. Code, § 23152, subd. (b)), and driving with a suspended license for driving under the influence (Veh. Code, § 14601.2, subd. (a)). On June 16, 2016, the trial court denied probation and sentenced him to a total term of two years in county jail; however, the court suspended execution of the second year of his county jail term and ordered defendant to serve 12 months of mandatory supervision with various terms and conditions. He appeals, contending: (1) his counsel rendered ineffective assistance by failing to object to the prosecutor's misconduct in closing argument; (2) the residence approval condition of his mandatory supervision term is unconstitutionally overbroad; (3) remand is necessary because the trial court failed to specify the amount and state the statutory basis for each fine, fee and penalty assessment; (4) his sentence for count 2 should have been stayed pursuant to Penal Code section 654; and (5) the minute order should be corrected to accurately reflect the trial court's oral pronouncement of judgment with respect to the residence approval condition and the sentence on count 3. We agree that defendant's sentence for count 2 must be stayed and that the minute order must be corrected to accurately reflect the residence approval condition; otherwise, we affirm.
I. FACTS
A. Prosecution's Case.
On May 10, 2015, about 7:20 p.m., California Highway Patrol Officer Gary Johnson was traveling on the Interstate 10 freeway (I-10) east of Indio, when he stopped to investigate a stationary vehicle on the shoulder, in the dirt, 20 feet south of the road. The engine was running, and defendant was sleeping in the driver's seat. When the detective began to talk to defendant, defendant appeared disoriented and sleepy; however, he told the officer that he was okay and there was nothing wrong with his car.
The officer testified that he detected a strong smell of alcohol and asked defendant to step out of the car. Defendant complied; his gait was unsteady, consistent with being under the influence of alcohol. Upon inquiry, defendant admitted he was driving the car, stating he had been in Palm Desert and was heading to work in Blythe. When asked why he had pulled off the road, defendant said he "just stopped to rest." He stated that he had taken prescription medication and drank "one Chavela" (beer with tomato juice) before driving. Officer Johnson asked defendant to rate feeling the effects of alcohol on a scale of 1 to 10, with 10 feeling completely intoxicated. Defendant replied, "4 out of 10." Defendant then stated that he began drinking at 10:00 a.m. and stopped around noon.
Officer Johnson stated that he administered a field sobriety examination, and defendant's performance was consistent with being under the influence of alcohol. The officer administered the preliminary alcohol screening test, which resulted in measurements of 0.162 and 0.163 percent. Officer Johnson believed defendant was under the influence of alcohol and placed him under arrest. Defendant's preliminary evidential breath test resulted in measurements of 0.14 and 0.16 percent.
According to the officer, at no time did defendant indicate or say that someone else had been driving the car. The officer opined that defendant was the driver.
B. The Defense.
Defendant testified that about May 10, 2015, he was working in Blythe. On May 10, he was eating lunch in Indio when he ran into his cousin, Alex Figueroa. Defendant drank a few beers at lunch and then the two of them went to Figueroa's mother's house in Coachella, where defendant drank another eight to 10 beers.
Defendant stated that night, he convinced Figueroa to drive him to Blythe. During the drive, the car began to overheat and Figueroa pulled over. They opened the hood and saw the radiator was "evaporating hot water." Figueroa walked back to Coachella to get help, while defendant stayed behind. Defendant moved into the driver's seat at one point to see if the car was cooling down. He was sitting in the driver's seat when Officer Johnson arrived. Defendant told the officer that his car had broken down. When asked if he had been driving the car, defendant said, "no," that his cousin had been driving.
Defendant testified that after he was released from custody, he picked up his car from the impound lot and took it to his auto mechanic, who repaired a broken radiator hose. It was stipulated that defendant's auto mechanic worked on defendant's car on May 11, 2015, fixed the radiator, and added antifreeze. Defendant admitted that on May 10, 2015, he had a suspended driver's license, and he had been previously convicted of at least one felony involving moral turpitude, and misdemeanor shoplifting.
II. DISCUSSION
A. Failure to Object to Prosecutorial Misconduct in Closing Argument.
Defendant contends that his trial counsel rendered ineffective assistance by failing to object to prosecutorial misconduct in closing argument.
1. Arguing Defense Counsel Was Complicit in Fabricating the Defense.
Defendant argues that the prosecutor committed prejudicial misconduct because he mocked both defense counsel and himself, "casting shade on D.U.I. defense practices," and asserted that defense counsel fabricated the evidence. The People argue that the contention is forfeited because defense counsel did not object to the challenged portion of the prosecutor's argument. Despite the lack of counsel's objection on the alleged misconduct, we consider the issue on the merits because defendant also raises it under the rubric of ineffective assistance of counsel.
a. Additional factual and procedural background.
On cross-examination, the prosecutor questioned defendant as to why Figueroa did not come forward and confirm defendant's story, implying that his story was fabricated. This point became a contentious issue during closing arguments. The prosecutor argued that defendant fabricated his testimony about Figueroa being the driver. Labeling Figueroa as "the phantom," the prosecutor argued that defendant's statements to Officer Johnson established that defendant was driving the car and was alone that evening. To further support the inference that defendant was the driver, the prosecutor pointed out defendant's position behind the wheel, the fact that the keys were in the ignition, and the location of the vehicle. He urged the jury to reject defendant's "convoluted, complex, and unusual explanation" and to accept the "simple, logical" one.
"Q. BY [THE PROSECUTOR]: And did [Figueroa] agree to help you out in this case in any way that he could?
"A. Yes—well, at first, no. He was skeptical.
"Q. Why? Why was he skeptical?
"A. H—he didn't want to get involved.
"Q. He didn't want to save you from a—
"A. No. He has some immigration status he was going through. He didn't want to get involved with courts issues.
"Q. Perhaps did he tell you: "[Defendant], I'm sorry. I can't come to court and lie for you?
"A. Um, no, he didn't.
"Q. He didn't say that. [¶] Okay. Well, did you call him up and say, 'Hey, I have an actual jury trial where 12 members of the public will decide whether or not I'm guilty or not guilty.' Right? You told him that?
"A. Yeah.
"Q. And he said, 'I'm going to be there for you to help tell the truth, tell your story.' Did he say that?
"A. Yeah. When I finally convinced him to come and that he had to do this—testify.
"Q. And he was to testify in this trial and tell your story; right?
"[DEFENSE COUNSEL]: I'm going to object to relevance at this point, your Honor.
"THE COURT: Well, it's getting to the point of being argumentative. I think you've made your point, Counsel."
In response, defense counsel argued that defendant's testimony did not contradict Officer Johnson's testimony, because defendant acknowledged that he was in the driver's seat of the vehicle for the purpose of checking the engine temperature. Counsel asserted that defendant's statements were not an admission that he was driving because the detective's question ("'where were you driving from?") served the purpose of asking about defendant's intended destination.
During rebuttal, the prosecutor argued that it is "very easy" to come up with a defense to driving under the influence and there are "plenty of attorneys" who would take such case. He described the defense counsel's role as choosing a defense based on the strength of the evidence. As for this case, the prosecutor argued: "And the defense in this case, classic TODDI ('this other dude did it') defense. Just get in front of you, spin a yarn, hope you'll bite onto it. Mention a reasonable doubt enough to make some of you—oh, I don't know. And then, hopefully, that's enough." The prosecutor repeated the evidence of guilt and argued that "all the evidence in this case is the simplest conclusion, the most logical conclusion. The defendant was driving that car. He had been drinking a lot on Sunday, had to go to work, gets in his car, starts making the drive out, maybe he gets tired, maybe he realizes he's too drunk to drive, pulls over to rest, just like he told the officer. And then who comes along—Officer Johnson. But now a year later we've fabricated the story that this other guy did it, and now he expects you 12 to walk him out the door."
b. Analysis.
Prosecutorial misconduct will be found where the prosecutor uses "'"deceptive or reprehensible methods to attempt to persuade either the court or the jury."' [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Deceptive or reprehensible methods include the insinuation that defense counsel "was acting in bad faith in challenging the sufficiency" of the evidence. (People v. Perry (1972) 7 Cal.3d 756, 790 (Perry).) In Perry, the prosecutor asserted that defense counsel was acting in bad faith in challenging the sufficiency of the police report and by implying that defense counsel had improperly secured a witness's statements, which contradicted the account she had told police. (Id. at p. 789.) The prosecutor responded to defense counsel's assertion that the prosecution team ignored "morality" in an effort to secure a conviction, by attacking defense attorneys because they "were not ethically obligated to present the facts and so were free to obscure the truth and confuse the jury." (Ibid.) Finding prosecutorial misconduct in the accusations against defense counsel, the court observed, "'[t]he conviction of a defendant of the crime of which he is accused should rest not even slightly upon the dereliction (if any) of his counsel, but ordinarily should be grounded upon acts committed by the defendant . . . .' [Citation.]" (Id. at p. 790.)
Defendant argues that Perry lends persuasive authority for a finding of misconduct in the present case. In Perry, the prosecutor's comment was viewed as an attack on the character of defense counsel and deemed to be improper as such. While attacks on the personal character of counsel may constitute prosecutorial misconduct, there has been no such attack in the present case. The prosecutor focused on the evidentiary reasons why the defendant's testimony could not be trusted over Officer Johnson's testimony. Unlike arguments denigrating the character of counsel, attacks on the integrity of opposing witnesses are permissible. (People v. Arias (1996) 13 Cal.4th 92, 162.)
Because the prosecutor's comments were calculated not to disparage opposing counsel, but rather to attack the credibility of defendant himself, we discern no misconduct.
2. Ineffective Assistance of Counsel.
Defendant contends his trial counsel rendered ineffective assistance by failing to object to the prosecutor's remarks during rebuttal. A showing of ineffective assistance of counsel requires (1) a showing that counsel's performance was deficient, "in that it fell below an objective standard of reasonableness under prevailing professional norms," and (2) a showing of resulting prejudice. (People v. Mai (2013) 57 Cal.4th 986, 1009.) Because we have already concluded that there was no prosecutorial misconduct, defense counsel's failure to object did not constitute ineffective assistance.
B. Residence Approval Condition Is Not Overbroad.
Defendant argues his residence approval condition is unconstitutionally overbroad because it grants the probation department too much discretion to determine where he may live. He also contends the condition is "problematic because it fails to delineate a standard by which the probation officer should determine when to disapprove of [his] residence status." The People argue that defendant forfeited his challenge to this condition because he failed to object at the sentencing hearing and his claim does not fall under the narrow exception to the forfeiture rule. (In re Sheena K. (2007) 40 Cal.4th 875, 887 ["[a]n obvious legal error at sentencing that is 'correctable without referring to factual findings in the record or remanding for further findings' is not subject to forfeiture"].) In the alternative, the People assert the residency restrictions on defendant's constitutional rights to travel and association are not overbroad but are reasonably related to the individual circumstances pertaining to defendant. Assuming arguendo that defendant has not waived or forfeited the argument, we hold that the residence approval condition was reasonably related to preventing potential future criminality by defendant.
1. Additional Factual and Procedural Background.
At the sentencing hearing, the trial court imposed specific conditions as part of defendant's mandatory supervision term. Condition No. 15 provides: "Inform the probation officer of your place of residence and reside at a residence approved by the probation officer. Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer."
2. Analysis.
Mandatory sentencing is not the equivalent of granting probation as one can only be placed on mandatory supervision after probation has been denied; thus, mandatory supervision "is akin to a state prison commitment; it is not a grant of probation or a conditional sentence." (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422.) Therefore, mandatory release conditions are scrutinized under comparable criteria as those applicable to parole terms. (People v. Martinez (2014) 226 Cal.App.4th 759, 763.) Nonetheless, this scrutiny is determined by the same standards which apply to probation conditions. (In re Hudson (2006) 143 Cal.App.4th 1, 9.)
Here, the court denied formal probation before imposing sentence.
"'[I]n the absence of a showing that the probation condition infringes upon a constitutional right,' 'this court simply reviews such a condition for abuse of discretion, that is, for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' [Citation.]" (People v. Moran (2016) 1 Cal.5th 398, 407.) "Generally, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.]' [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens."' [Citation.]" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil); see Morrissey v. Brewer (1972) 408 U.S. 471, 477-478 [typically, parolees must seek permission from their parole officers before changing residences]; see also People v. Soto (2016) 245 Cal.App.4th 1219, 1228, fn. 3 ["We note that there may be certain situations where obtaining the probation officer or court's approval before changing residences or leaving the state may be required for adequate supervision of the defendant and may be reasonably related to future criminality."].)
Defendant relies upon People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer), in which the reviewing court struck a residence approval condition that appeared designed to prevent the defendant from living with his parents because they were overprotective. (Id. at p. 944.) Nothing in that record suggested that the defendant's home life contributed to the misdemeanor crimes of which he was convicted, or that his home life was reasonably related to future criminality. (Ibid.) Nothing in the opinion reflects the defendant had any prior criminal history. The court concluded that the residence approval condition impinged on the defendant's right to travel and freedom of association, and was extremely broad since it gave the probation officer the power to forbid the defendant from living with or near his parents. (Ibid.)
The present case is distinguishable. Defendant was convicted of three D.U.I.-related offenses, including driving with a suspended license for driving under the influence. He has a substantial criminal history involving D.U.I.'s. The fact that he continued to drive with a suspended license and while intoxicated necessitates a heightened degree of supervision. Where defendant lives will directly affect his rehabilitation; e.g., without any limitations, defendant could choose to live in a remote residence with limited access to public transportation, or with individuals who are complacent with his drinking and having access to vehicles. Under these circumstances, the state's interest in defendant's rehabilitation is properly served by the residence approval condition.
Defendant additionally relies upon O'Neil, supra, 165 Cal.App.4th 1351, in which the court held that a condition forbidding the defendant from associating with persons prohibited by his probation officer was overbroad because it was not limited to persons the defendant knew were so designated by the probation officer and because there were no guidelines as to whom the probation officer could so designate. (Id. at pp. 1357-1359.) However, the legal landscape has changed since Bauer and O'Neil. The Supreme Court stated in Olguin, supra, 45 Cal.4th at page 382, that "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" We view the residence approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 383.) If the probation officer disapproves of a particular residence for any arbitrary reason, defendant may then file a petition for modification of his probation condition. (Pen. Code, §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708, [trial court retains jurisdiction to review probation officer's actions].) Thus, the residence approval condition is constitutionally valid.
C. The Trial Court Failed to Specify the Fines and Fees.
Defendant faults the trial court for failing to identify on the record, with specificity, the fines and fees listed in the probation report. He contends the case must be remanded. He is mistaken.
1. Additional Factual and Procedural Background.
The probation report imposed fines and fees to be paid, including the cost of the presentence probation report and probation supervision, a booking fee, assessment fees, and restitution fines. The report also listed the statutory basis for each imposed fine and fee.
At the sentencing hearing, the trial court asked defendant if he had received a copy of the terms and conditions of probation, and if he accepted "probation and mandatory supervision under [those] terms and conditions," which included the fines and fees. Defendant replied, "Yes, your Honor." When imposing sentence, the court said: "And all the conditions—terms and conditions are listed, other than number 7 that we deleted, will be part of the mandatory supervision terms and conditions." The minute order sets forth the fines and fees, along with the statutory basis for each one. Because defendant was to serve his sentence in county jail, no abstract of judgment was prepared.
The probation report, which defense counsel and the trial court had reviewed prior to sentencing, sets forth specific details on the fees and penalty assessments. These same fees and penalty assessments are identified in the minute order as follows:
"As to count(s) 1 2 3, Court Operations Assessment fee of $40 imposed for each convicted charge. (1465.8 PC)
"Pay conviction assessment fee for the following convicted count(s) 1 2 3. (GC 70373). [$30.each misd and felony]
"As to count(s) 1 2, pay fine and penalty assessment of $2154.00. [¶] . . . [¶]
"Pay the MADD program fee in the amount of $35.00. Fee payable to program at time of registration. [¶] . . . [¶]
"Pay the actual cost of court ordered drug testing through the court as directed by Enhanced Collections Division. [¶] . . . [¶]
"Pay cost of pre-sentence report in amount to be determined by Probation, not to exceed . . . $1091.00 (PC 1203.1b). [¶] . . . [¶]
"Pay the costs of mandatory supervision in an amount to be determined by the Probation Department.
"Based on the level of supervision, the costs will range from $591.12 to $3744.00. (PC 1203.1b) [¶] . . . [¶]
"Unless otherwise directed, all fines, fees and restitution imposed shall be paid to the Court, as directed by the Enhanced Collections Division.
"Pay booking fees of $425.82 (GC 29550).
"Pay restitution fine of $300.00 (PC 1202.4(b)).
"Pay $300.00 for Mandatory Supervision Revocation restitution fine. Said restitution fine is stayed and the stay shall be lifted upon the revocation of Mandatory supervision, and if the defendant is sentenced to prison or county jail without a conditional sentence imposed (PC 1202.45(b))"
2. Analysis.
Defendant contends that the oral pronouncement of judgment is inadequate because the trial court merely incorporated by reference the probation report that separately listed the fines and fees, instead of specifying each on the record. (People v. High (2004) 119 Cal.App.4th 1192, 1200 [trial courts are required to identify the statutory basis for all fees, fines, and penalties imposed].)
The failure to specify the amount and statutory basis for each fine, fee, and penalty assessment is legal error that can be raised on appeal regardless of whether an objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) A trial court can satisfy this legal requirement by reciting on the record the amounts and statutory bases for any fines and penalty assessments. (People v. Hamed (2013) 221 Cal.App.4th 928, 939 (Hamed).) Alternatively, where the amounts and statutory bases for the fines and penalty assessments have been set forth in a probation report, a sentencing memorandum, or some other writing, the trial court can refer in its oral pronouncement to the fines, fees, and penalty assessments as set forth in the probation report, sentencing memorandum, or writing. (People v. Voit (2011) 200 Cal.App.4th 1353, 1373; People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
Here, the trial court specifically referenced the fines, fees, and assessments set forth in the probation report and specifically incorporated those amounts in its oral pronouncement of sentence. The details were set forth in the probation report's sentencing recommendation. The reference to the probation report during the oral pronouncement of sentence satisfies the legal requirements. (Hamed, supra, 221 Cal.App.4th at pp. 939-940.)
Moreover, each of the fines and fees were separately itemized, along with the statutory source, in the minute order. Defendant does not claim that any assessment is unauthorized or that the trial court never intended that any assessment be imposed. On this record, therefore, a remand is not appropriate.
D. Penal Code Section 654 Compels a Stay of Count 2.
Defendant argues, and the People concede, that the sentence for count 2 should have been stayed pursuant to Penal Code section 654 because count 1 (Veh. Code, § 23152, subd. (a)) and count 2 (Veh. Code, § 23152, subd. (b)) arose from a single act. Pursuant to Penal Code section 654, we modify defendant's sentence to stay the concurrent two-year sentence on count 2. (See People v. Martinez (2007) 156 Cal.App.4th 851, 853, 857 [where defendant was convicted of four separate D.U.I. counts, including violations of both subds. (a) and (b) of Veh. Code, § 23152, all arising from a single act, the concurrent sentences on three of the four convictions were stayed pursuant to Pen. Code, § 654]; see People v. Duarte (1984) 161 Cal.App.3d 438, 447 [where defendant was convicted of both subds. (a) and (b) of Veh. Code, § 23153, "[t]he court properly exercised discretion in choosing to stay the execution of sentence on the subdivision (b) conviction."].)
E. The Oral Pronouncement of Sentence Compels Correction of the Minute Order.
Defendant contends the minute order should be corrected to accurately reflect the trial court's oral pronouncement of judgment with respect to the residence approval condition and the concurrent 90-day jail term on count 3. The People agree only that the condition language must be corrected in the minute order. We agree with the People.
1. The Residence Approval Condition.
The probation report sets forth the residence approval condition (No. 15) as follows: "Inform the probation officer of your place of residence and reside at a residence approved by the probation officer. Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer." The minute order refers to condition No. 15; however, it does not include the second sentence. The trial court incorporated by reference the probation officer's report with respect to that condition: "And all the conditions—terms and conditions are listed, other than number 7 that we deleted, will be part of the mandatory supervision terms and conditions." Thus, the minute order must be corrected to accurately reflect condition No. 15 as set forth in the probation report. (People v. Zackery (2007) 147 Cal.App.4th 380, 385 [when there is a discrepancy between oral pronouncement and minute order, the oral pronouncement prevails].)
2. Sentence on Count 3.
The trial court orally pronounced defendant's sentence on count 3 as "six months concurrent." The minute order accurately reflects this pronouncement: "For The Charge(s) 3. [¶] Sentenced to Riverside County Jail for the term of 180 days. [¶] Count 3 to run Concurrent." Thus, there is no discrepancy between the court's oral pronouncement of the sentence on count 3 and the minute order.
III. DISPOSITION
The trial court is directed to modify the judgment to stay the sentence on count 2, and the minute order of June 16, 2016, shall be corrected to accurately reflect the language in probation condition No. 15. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. SLOUGH
J.