Opinion
B292821
03-17-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID DANIEL DELGADO, Defendant and Appellant.
Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and Scott A. Taryle, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA113845) APPEAL from a judgment of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Modified and, as so modified, affirmed. Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted defendant and appellant David Daniel Delgado of inflicting corporal injury on his girlfriend, disobeying a domestic relations court order, fleeing a pursuing peace officer while driving recklessly, and resisting, delaying, or obstructing a peace officer. He appeals the judgment, contending that the prosecutor improperly commented on his failure to testify in violation of Griffin v. California (1965) 380 U.S. 609; Penal Code section 654 required that sentence on the conviction for resisting a peace officer be stayed; the imposition of fines and assessments, without a determination of his ability to pay, violated his due process rights; and because of a recent amendment to section 667.5, three one-year prior prison term enhancements must be stricken. We agree with Delgado's last contention and order the enhancements stricken. In all other respects, we affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. Silva's initial account to police
Delgado and Lupe Silva began dating in August 2016. On the evening of October 20, 2016, Silva went to the Azusa police station and told Azusa Police Officer Jorge Sandoval that Delgado had abused her. She explained that that afternoon, she and Delgado had been driving in Delgado's vehicle. They argued about a message Silva had received from another woman, who claimed to be pregnant with Delgado's child and involved in a relationship with him. Silva asked Delgado to drive her to a friend's home, but instead he drove her to another residence. A woman named Lizeth—who apparently was the source of the message—came outside. After a brief conversation with her, Silva walked away down the street. Delgado followed Silva on foot, slapped her in the face forcefully enough to knock her glasses off, and ordered her to return to the truck. Afraid, she complied.
Delgado then drove to a nearby market, where he initiated a confrontation with an African American man. Silva told him to stop. When the pair drove away from the market, Delgado accused Silva of looking at another man. She denied it. He said, " 'You're lying to me and every time you're lying to me, I'm going to pull over and I'm going to beat your ass.' "
Delgado drove to another store, exited the truck, and confronted another African American man. Silva yelled at Delgado to stop, and used his first name. Delgado said to Silva, " 'Bitch. I told you not to use my name.' " Silva ran into a nearby store to escape Delgado and attempted to call her mother, without success. When she exited the store, Delgado grabbed her by the hair and ordered her to get back in his truck. He again accused of her of looking at another man, and slapped her in the face. He then drove to a park, where they both took a nap. Afterwards he drove her home.
When Silva spoke to Officer Sandoval that evening, she had a swollen left eye, a red abrasion on her left cheek, and dried blood inside her mouth. Sandoval photographed her injuries. He believed Silva's injuries were unlikely to have been caused merely by two slaps with an open palm. Silva appeared to be distressed and in pain, and repeatedly told Sandoval that she was afraid. She did not state that she got in a fight with Lizeth, or that her injuries had been caused by Lizeth. She requested issuance of an emergency protective order.
Azusa Police Officer Lauren Ferrari spoke with Silva on October 25, 2016. Silva did not say she had gotten into a fight with Lizeth, nor did she recant her statement that Delgado assaulted her.
b. Delgado's arrest and the police pursuit
A warrant was issued for Delgado's arrest. On October 25, 2016, four unmarked police cars and one marked police car followed him when he left his residence in a pickup truck. When one of the unmarked cars activated its emergency lights, Delgado accelerated. The marked police car moved directly behind Delgado and activated its lights and siren. Delgado then led officers on a 21-minute pursuit in medium to heavy traffic, during which he exceeded the speed limit, sped through a busy parking lot, drove on the wrong side of the road, ran red lights and stop signs, and almost hit a bicyclist. Police eventually employed a "pursuit intervention technique" (PIT) maneuver, i.e., a deliberate collision, causing Delgado's vehicle to spin and crash into a fence.
While the truck was still moving, Delgado exited, ran down the road, and jumped a chain link fence. Uniformed officers followed on foot and ordered him to stop. Delgado was limping, and after running 50-75 feet, fell face down on the grass. When one of the officers attempted to handcuff him, Delgado resisted, tensing his arms so that the officer was unable to control one of Delgado's arms. Two other officers arrived and together the three officers were "able to overcome his strength and movements and put his arms behind his back and handcuff him."
c. The jailhouse telephone calls
Despite the issuance of a protective order requiring Delgado to have no contact with Silva, he telephoned her from jail numerous times. Some or all of these calls were recorded. In one such call, Delgado said: "I am fucking sorry though, like babe, for what I fucking did to you. I fucking apologize and . . . ." He continued, "I am never going to fucking let that shit happen again. And you fucking have to know—you have to know and trust those words because that is essentially what I told my baby's mom. The first—[a]fter all this happened with her. I never fucking—I never ever laid a hand on her again."
In another call, Silva informed Delgado that she had been subpoenaed and had "never lied for anybody in [her] life." She related that Delgado's mother had told her she had been "in this spot before with your dad, and she . . . had to do something for your dad, and . . . I have to do the same thing," i.e., "go to court and have your back." Delgado replied that if Silva did not "show up," he would get less time; but that if she testified, "they" would "make her say what she said." Silva stated that she had also spoken with Delgado's sister, who informed her that " 'they are going to have you go and say what he—what he did to you, and they are going to have pictures.' " Delgado responded that if Silva went "on vacation like from fucking work and everything for like until the court date is over, until the trial is over and everything and they can't get a hold of you, they can't find you . . . they will drop the case. I will get like lesser time. Like they will drop the charges and shit." When Silva pointed out that such actions might result in her arrest and prosecution, Delgado replied, "They are just trying to scare you."
Delgado suggested, in two calls, that Silva could deny everything and say she made up the accusations because she was angry at him. He stated, "The only thing you can do now to help me is fucking tell them that you lied" and that "you found out I was talking to a girl, that I cheated on you or whatever," and "you told them that lie because you were mad at me because you found out I was cheating on you, that I was talking to another girl. You get it?" He acknowledged he would serve time in any event because of the evading charges, since he "drove around Azusa like fucking for like a half hour almost. Like everywhere just fucking while the cops were behind me."
d. Silva's November 7, 2016 statements to police
On November 7, 2016, Silva returned to the Azusa police station and requested that the domestic violence charges against Delgado be dropped. In an audio-recorded interview, she said she had known Delgado for ten months and had "been with him" for three, and had never seen him "like that." He frightened her. He was doing drugs every day, and she felt sorry for him. "[H]e was just getting more lost in the drugs, so he hit me. And when he hit me . . . looking in his eyes, he was like a completely different person, like the devil or something. It was scary. I got scared." She added, "It's just hard for me to believe that somebody could actually do some things like that to a lady, so . . . I guess I found out." A detective reminded her of her previous report to police, and queried, "look at your eye. Is that somebody, that would do that to you, is that somebody that respects you?" Silva answered, "Well, he is somebody. I mean no, no. But he's somebody who doesn't even, who never even grew up learning respect." When the detective stated, "You obviously seem like a very nice person, but you didn't ask for this. Did you ask him to hit you?" Silva replied, "No." When the detective asked why Silva wanted to "act nice" when she emerged from the store, she explained she "just wanted it to end. . . . Seemed like a nightmare." Silva did not claim that she had been in a fight with Lizeth, and did not recant her statement that Delgado assaulted her.
e. Silva's preliminary hearing and trial testimony
Prior to the preliminary hearing, Silva married Delgado.
At the preliminary hearing, Silva testified that her injuries were suffered as the result of a physical fight she had with Lizeth on October 20, 2016. She falsely blamed Delgado because she was angry with him for cheating on her with Lizeth and wanted revenge. She obtained the restraining order only because an officer suggested she should. She denied or claimed not to remember various facts she had reported to the police.
At trial, Silva reiterated her preliminary hearing account. She denied or could not recall most of the facts she had reported to officers. Eventually, she refused to answer any further questions. The trial court found her in contempt of court and concluded her refusal to answer questions demonstrated her "alliance and collusion with the defendant." With the agreement of defense counsel, the court struck her trial testimony, found she was an unavailable witness, and permitted the prosecutor to introduce her preliminary hearing testimony.
The trial court denied defense counsel's mistrial motion. That ruling is not at issue here.
The defense presented no evidence.
2. Procedure
A jury convicted Delgado of inflicting corporal injury on a spouse, cohabitant, girlfriend, or child's parent after a prior conviction (§ 273.5, subd. (f)(1), count 2), misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a), count 5), fleeing a pursuing peace officer while driving recklessly (Veh. Code, § 2800.2, count 1), and misdemeanor resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1), count 4). It acquitted Delgado of kidnapping and the lesser included offense of false imprisonment. In a bifurcated proceeding, Delgado admitted suffering a prior "strike" conviction for making criminal threats (§§ 422, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serving three prior prison terms within the meaning of section 667.5, subdivision (b), one of which was for injuring a spouse or cohabitant in violation of section 273.5, subdivision (a). The trial court denied Delgado's Romero motion. It imposed a sentence of 13 years eight months in prison, plus two years in county jail. It imposed a restitution fine of $300, a suspended parole revocation restitution fine in the same amount, a $40 court operations assessment on each count, and a $30 criminal conviction assessment on each count, as well as a $10 citation processing fee. Delgado timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Initially, the trial court imposed a sentence of 14 years four months, plus two years for the misdemeanor counts. It later corrected its calculation of sentence on count 1 in case No. KA114068 to eight, rather than 16, months.
DISCUSSION
1. The prosecutor did not commit Griffin error
Delgado contends that during argument, the prosecutor improperly commented on his failure to testify, in violation of Griffin v. California, supra, 380 U.S. 609. We disagree.
a. Additional facts
During closing, defense counsel argued that Silva's statements to police were not credible. Regarding the recorded telephone conversations between Silva and Delgado, defense counsel argued: "So what about those phone calls? Ladies and gentlemen, in Defense Exhibits A through D, you will see the almost 2000 phone calls that Mr. Delgado did while he was in custody. Okay. 2000 phone calls. And they're picking one phone call and they're saying, [l]ook, look at that. That's collusion. That's coordination. That's intimidation. [¶] That one phone call from November of 2016. Was she taking notes? Did she have solid steel memory from November and is able to suddenly deliver it in March? Or is Delgado telling her to tell the truth? There's only two people who know what really happened, Mr. Delgado and Ms. Silva. [¶] The truth will set you free. Why don't you tell them the truth. [¶] One phone call doesn't show collusion or some kind of intimidation or some kind of coordination between Ms. Silva and Delgado. It's one random phone call that has two interpretations. Tell them the truth, or, as the prosecution is saying, say this."
In his closing, the prosecutor responded to defense counsel's argument as follows: "But here's the bigger issue with all of that and it's in that jail call. Not once did you hear the defendant testify truthfully. Testify truthfully. Go tell the police officers the truth. Go tell them the truth. [¶] You didn't hear that. What you heard was, just tell them this. Tell them you got mad at me. [¶] And the defense talks about the 2000 or so jail calls. That's a lot of phone calls. I don't even know if I made 2000 calls in the last ten months, just period. He made 2000 calls, right. [¶] You better believe that if there was anything that showed that the defendant did not do the kidnapping or the domestic violence, you better believe that that call would have been played for you." (Italics added.) Defense counsel objected that the argument improperly shifted the burden of proof to the defense. The court sustained the objection and instructed the prosecutor to "move on."
b. Discussion
The Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant's failure to testify at trial. (Griffin v. California, supra, 380 U.S. at pp. 613-615; People v. Lopez (2018) 5 Cal.5th 339, 368; People v. Thompson (2016) 1 Cal.5th 1043, 1117-1118; People v. Thomas (2012) 54 Cal.4th 908, 945.) Thus, a prosecutor may not refer to the absence of evidence that only the defendant's testimony could provide, nor may he or she argue that evidence is uncontradicted " 'if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.' " (People v. Gomez (2018) 6 Cal.5th 243, 299; Thomas, at p. 945; People v. Brady (2010) 50 Cal.4th 547, 565-566; People v. Carr (2010) 190 Cal.App.4th 475, 483.) However, a prosecutor may comment on the state of the evidence or on the defense's failure to call logical witnesses or introduce material evidence. (Gomez, at p. 299; Brady, at p. 566; Thomas, at p. 945.) "We evaluate claims of Griffin error by inquiring whether there is 'a reasonable likelihood that any of the [prosecutor's] comments could have been understood, within its context, to refer to defendant's failure to testify.' " (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1523; see People v. Denard (2015) 242 Cal.App.4th 1012, 1020.)
Delgado avers that the prosecutor's comments violated Griffin in two respects. First, he points to the prosecutor's words, "Not once did you hear the defendant testify truthfully. Testify truthfully." He asserts that these statements amounted to a direct and explicit invitation to the jury to find guilt based on his failure to testify. But Delgado's argument has force only if the prosecutor's words are severed from the context in which they were used. Read in context, the prosecutor's meaning was, obviously and unambiguously, that during the recorded calls, Delgado never told Silva to testify truthfully. Although the prosecutor's misstatement, i.e., omission of the words "tell Silva to," was unfortunate, there is no danger that jurors would have understood the argument as a comment on Delgado's failure to take the stand. Thus, there is no reasonable probability that this remark misled the jury into drawing an improper inference about Delgado's silence. (See People v. Sanchez, supra, 228 Cal.App.4th at p. 1523 [we consider comments in context].) In the challenged portion of the argument, the prosecutor expressly referenced the jail calls between Silva and Delgado, and jurors could not have misunderstood his meaning.
The People aver that Delgado's Griffin claims have been forfeited because he did not object to the first challenged comment and did not request an admonition as to the second. (See, e.g., People v. Lancaster (2007) 41 Cal.4th 50, 84 [claim of Griffin error not preserved for appeal in absence of failure to object or request an admonition]; People v. Noriega (2015) 237 Cal.App.4th 991, 1002; cf. People v. Winbush (2017) 2 Cal.5th 402, 482 [where defendant objected to prosecutor's argument but did not request an admonition, claim of prosecutorial misconduct was forfeited on appeal].)
Delgado argues that counsel's objection should be viewed as an objection to the prosecutor's "whole line of argument," and in any event, if counsel's failure to object forfeited the Griffin error claim, he received ineffective assistance of counsel. We need not reach the question of forfeiture in light of our conclusion post that no Griffin error occurred.
Second, Delgado points to the prosecutor's statement, "[y]ou better believe that if there was anything that showed that the defendant did not do the kidnapping or the domestic violence, you better believe that that call would have been played for you." He maintains that this statement improperly telegraphed to the jury that the evidence of guilt was uncontroverted and "likely misled the jury into questioning why [he] did not take the stand and explain what he meant while speaking to Silva," especially in light of defense counsel's argument that only Delgado and Silva knew what really happened.
This argument lacks merit. The prosecutor's statement was a fair comment on the state of the evidence, not a comment on Delgado's failure to testify. The prosecutor averred that if an exculpatory telephone call existed, the defense would have presented it. This comment did not state or imply that Delgado was guilty because he failed to take the stand. " ' "[A]s a general principle, prosecutors may allude to the defense's failure to present exculpatory evidence" [citation], and such commentary does not ordinarily violate Griffin or erroneously imply that the defendant bears a burden of proof . . ." ' [Citations.] As the Supreme Court has cautioned, Griffin's protection of the right to remain silent is 'a "shield," not a "sword" that can be used to "cut off the prosecution's 'fair response' to the evidence or argument of the defendant." [Citation.]' " (People v. Carr, supra, 190 Cal.App.4th at p. 483; see People v. Gomez, supra, 6 Cal.5th at p. 299 [prosecutor's comment on the " 'state of the evidence or upon the failure of the defense to introduce material evidence' " does not violate Griffin].)
The prosecutor's argument here did not reference evidence that could only have been provided through Delgado's testimony. His point was that the defense failed to produce other evidence—the recorded calls. (See People v. Poletti (2015) 240 Cal.App.4th 1191, 1212-1213 [prosecutor's comments that defendant knew best why sexual molestation victim failed to disclose the abuse were "best viewed as referencing a piece of evidence, the pretext call, and not as an implicit suggestion that defendant should have testified"]; see also People v. Gomez, supra, 6 Cal.5th at p. 299 [argument there was no evidence defendant read newspaper articles about the charged crime was a comment on the defense's failure to produce material evidence, rather than Griffin error]; People v. Taylor (2010) 48 Cal.4th 574, 632-633 [prosecutor's argument, " 'Who took this stand and gave you a reasonable explanation' " why defendant was in victim's home was, in context, proper comment on the evidence; as the prosecutor suggested, such evidence could have come from other witnesses]; People v. Medina (1995) 11 Cal.4th 694, 755-756 [prosecutor's rhetorical questions, " 'Where was [defense counsel's] rational explanation? How does he explain away the evidence . . . . ?' " were not Griffin error].)
Even if we were to find Griffin error here, we would conclude it was harmless beyond a reasonable doubt. (People v. Thompson, supra, 1 Cal.5th at p. 1118; People v. Denard, supra, 242 Cal.App.4th at p. 1022 [Griffin error is evaluated under the standard set forth in Chapman v. California (1967) 386 U.S. 18].) The jury was instructed that Delgado had an absolute right not to testify, and that it could "not consider, for any reason at all," the fact that he did not do so. We presume the jury followed this instruction. (Thompson, at p. 1118.) And, the evidence was overwhelming. In her initial report to police, and when she returned to request that charges be dropped, Silva averred that Delgado had hit her. She did not change her story until the preliminary hearing, after Delgado, in the recorded calls, suggested she should falsify her testimony. Most tellingly, in one of the recorded telephone conversations, Delgado essentially admitted hitting Silva; he apologized "for what [he] . . . did" to her, said he would never let "that shit happen again," and explained that when he made the same promise to another woman, he kept his word and "never ever laid a hand on her again." (See People v. Denard, at pp. 1021-1022 [where evidence of guilt was overwhelming, Griffin error was harmless beyond a reasonable doubt].)
2. Sentence on count 4 is not barred by section 654
The trial court sentenced Delgado to consecutive terms of eight months in prison and one year in jail on counts 1 (felony fleeing a pursuing peace officer while driving recklessly, Veh. Code, § 2800.2), and 4 (misdemeanor resisting, delaying, or obstructing a public officer, § 148, subd. (a)(1)), respectively. It rejected defense counsel's request to impose concurrent sentences on all the misdemeanor and subordinate counts. Other than the People's argument in a sentencing memorandum that section 654 was inapplicable, the trial court and the parties did not discuss its application. Delgado now contends that the court should have stayed sentence on count 4 pursuant to section 654, rather than imposing a consecutive term. We disagree.
a. Section 654
Section 654, subdivision (a), provides that an act or omission punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but not under more than one provision. "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311.)
Whether section 654 applies in a given case is generally a question of fact for the trial court. (People v. Jackson (2016) 1 Cal.5th 269, 354; People v. Buchanan (2016) 248 Cal.App.4th 603, 611.) "When there is no 'explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.' [Citations.]" (People v. Kelly (2018) 28 Cal.App.5th 886, 904-905; People v. Jimenez (2019) 32 Cal.App.5th 409, 424-425.) Because a sentence imposed in violation of section 654 is unauthorized, it may be corrected at any time, even if the defendant did not object below. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Soto (2016) 245 Cal.App.4th 1219, 1234.) Where section 654 applies, the proper procedure is to " 'sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' " (People v. Jones (2012) 54 Cal.4th 350, 353.)
b. Application here
It is clear the two offenses at issue involved separate, distinct acts. Where, as here, the facts are undisputed, the determination of whether multiple convictions are based upon a single physical act is a question we review de novo. (People v. Corpening, supra, 2 Cal.5th at p. 312.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.)
To prove count 1, recklessly evading a pursuing peace officer, the People had to prove a uniformed peace officer, driving a marked police vehicle with its lights activated, pursued Delgado; Delgado, who was also driving a motor vehicle, willfully fled from or tried to elude the officer; and during the pursuit, Delgado drove with willful or wanton disregard for the safety of persons or property. (CALCRIM No. 2181; People v. Leonard (2017) 15 Cal.App.5th 275, 279; People v. Weddington (2016) 246 Cal.App.4th 468, 486.) To prove count 4, resisting, obstructing, or delaying a peace officer, the People had to prove Delgado knowingly and willfully resisted, delayed, or obstructed a peace officer who was engaged in the performance of his duties. (CALCRIM No. 2656; In re Amanda A. (2015) 242 Cal.App.4th 537, 546; Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.) Thus, count 1 involved Delgado's leading officers on the vehicle pursuit, while count 4 was based on his running from the car on foot after the PIT maneuver and his refusal to cooperate when officers attempted to handcuff him. The actus reus for the two offenses was different. By definition, the reckless evading offense could only be committed while Delgado was driving his truck, and that offense was complete when Delgado exited the vehicle. The two offenses were thus based on separate acts for purposes of section 654. (See People v. Kelly, supra, 28 Cal.App.5th at p. 904 [transportation of methamphetamine and evading a pursuing peace officer could be separately punished; although both were based on defendant's act of driving the car, the act of transporting occurred and was completed before the evasion].)
We turn then to the second step of the inquiry. " ' " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " ' [Citations.]" (People v. Jimenez, supra, 32 Cal.App.5th at p. 424; People v. Jackson, supra, 1 Cal.5th at p. 354; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) "But even if a course of conduct is 'directed to one objective,' it may 'give rise to multiple violations and punishment' if it is 'divisible in time.' [Citation.] '[A] course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment "where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken." ' [Citation.]" (Jimenez, at p. 424; People v. Kopp (2019) 38 Cal.App.5th 47, 90, review granted November 13, 2019, S257844.)
"Whether a defendant had multiple intents or objectives in committing multiple crimes is generally a question of fact for the sentencing court." (People v. Jimenez, supra, 32 Cal.App.5th at p. 424.) When a trial court sentences a defendant to separate terms without making an express finding he entertained separate objectives, it is deemed to have made an implied finding that each offense had a separate objective. (Id. at pp. 424-425; People v. Kelly, supra, 28 Cal.App.5th at p. 905.) The trial court's findings on this point will be upheld on appeal if supported by substantial evidence. (Jimenez, at p. 425; Kelly, at p. 905.) We view the evidence in the light most favorable to the trial court's sentencing order, and presume the existence of facts a trier of fact could reasonably deduce from the evidence. (People v. Kopp, supra, 38 Cal.App.5th at p. 91, review granted; People v. Phung (2018) 25 Cal.App.5th 741, 761.)
Delgado contends that the vehicle pursuit, the brief foot chase, and his resistance to being handcuffed amounted to an indivisible course of conduct, undertaken pursuant to a single intent and objective, i.e., to evade capture. The People contend that Delgado had different objectives in committing the two offenses and, in any event, he had an opportunity to reflect on his conduct between commission of the first and second offenses.
Substantial evidence supports the trial court's implied finding that Delgado harbored a different intent and objective when committing each offense. "A defendant's criminal objective should not be defined too broadly and amorphously." (People v. Phung, supra, 25 Cal.App.5th at p. 760.) Delgado's objective, when driving recklessly during the pursuit, was clearly to evade officers. But the trial court could reasonably have found that after that offense was complete, when Delgado resisted by tensing his arms to prevent the officers from handcuffing him, he was no longer trying to escape. Surrounded by three officers, face down on the ground, apparently with an injured leg, Delgado no longer had a realistic chance of avoiding apprehension. Therefore, the court could reasonably infer that he had a new and independent motivation and intent: simple animosity toward the officers and a desire to be uncooperative. (See People v. Jimenez, supra, 32 Cal.App.5th at pp. 412, 425-426 [punishment for both evading under Vehicle Code section 2800.2 and assault was proper where defendant led officers on a high speed pursuit and drove at one of the patrol vehicles during the pursuit, despite claim he acted pursuant to a single intent to avoid apprehension].) Viewing the trial court's implied finding in the light most favorable to the sentencing order, and presuming the existence of facts the court could reasonably deduce from the evidence (People v. Phung, supra, 25 Cal.App.5th at p. 761), we conclude the evidence was sufficient.
In light of our conclusion, we find it unnecessary to reach the People's additional argument that section 654 was inapplicable because Delgado had sufficient time to reflect on his conduct between commission of the two offenses.
3. Imposition of fines and assessments
Without objection from Delgado, the trial court imposed a restitution fine of $300, a suspended parole revocation restitution fine in the same amount, a $30 criminal conviction assessment on each count for a total of $120, and a $40 court operations assessment on each count for a total of $160. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Delgado avers that he is indigent, and imposition of the fines and assessments, without a determination of his ability to pay, violated due process. Delgado asserts that we should order the assessments reversed and the restitution fines stayed unless and until the prosecution proves he has the present ability to pay them. We disagree.
The trial court held a single sentencing hearing on the instant case and an unrelated matter, case No. KA114068. As to the instant matter, when orally pronouncing judgment, the court stated it was imposing a "fine of $590." The court's minute order breaks this amount into its component parts, and also includes the mandatory section 1202.45 suspended parole revocation restitution fine. Delgado does not dispute that the minute order corresponds to the oral pronouncement of judgment.
Unlike the defendant in Dueñas, Delgado 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 based on an inability to pay, 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 .)
Delgado contends that if the failure to object forfeited the issue, his counsel provided ineffective assistance. But, even assuming the issue has been preserved for review, in our view 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 consider a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. 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 Delgado has put himself does not implicate the same due process concerns at issue in the factually unique Dueñas case. Delgado, 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].) Delgado is in prison because he committed domestic violence and led police on a dangerous pursuit, among other things. 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.)
4. Delgado's three prior prison term enhancements must be stricken
At sentencing, the trial court imposed three one-year prior prison term enhancements pursuant to section 667.5, subdivision (b). In supplemental briefing, Delgado contends that these enhancements must be stricken in light of the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), effective January 1, 2020. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341.) The People agree that Delgado is entitled to the ameliorative benefit of the new legislation, and so do we.
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez, supra, 42 Cal.App.5th at p. 340.) Senate Bill 136 amended section 667.5, subdivision (b), to "limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b)." (People v. Jennings, at p. 681; People v. Winn (2020) 44 Cal.App.5th 859, 872.) Senate Bill 136 applies retroactively to all defendants, such as Delgado, whose judgments were not yet final as of the statute's effective date. (People v. Jennings, at pp. 681-682; In re Estrada (1965) 63 Cal.2d 740, 748; see People v. Bermudez (2020) ___ Cal.App.5th ___ [2020 Cal.App.Lexis 128, *29-30]; People v. Petri (2020) 45 Cal.App.5th 82, 93-94; People v. Winn, supra, at p. 872.)
Here, Delgado's prior offenses were not for sexually violent offenses. The three enhancements must therefore be stricken. The parties agree that, because the trial court imposed the maximum allowable sentence, there is no need for it to again exercise its sentencing discretion, and we need not remand the matter for resentencing. (See People v. Winn, supra, 44 Cal.App.5th at pp. 872-873; People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
DISPOSITION
The three one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b), are stricken. The clerk of the superior court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. I concur:
EGERTON, J. LAVIN, J., Concurring:
I join the opinion except for parts 1(b) and 3 of the Discussion.
I agree with the People that defendant forfeited his claims of Griffin error. (See People v. Valdez (2004) 32 Cal.4th 73, 127; People v. Stanley (2006) 39 Cal.4th 913, 952.) I would also reject defendant's claim of ineffective assistance of counsel because the record on appeal sheds no light on why counsel failed to object to the prosecutor's challenged statements. (People v. Gamache (2010) 48 Cal.4th 347, 391.)
Griffin v. California (1965) 380 U.S. 609.
I disagree with the majority's contention that People v. Dueñas (2019) 30 Cal.App.5th 1157 was wrongly decided. Nevertheless, because defendant did not object to the imposition of a restitution fine in excess of the minimum $300 amount, he has forfeited any challenge to the fine based on his inability to pay. (See Pen. Code, § 1202.4, subd. (d); People v. Avila (2009) 46 Cal.4th 680, 729.)
Here, the sentencing minute order does not correspond to the oral pronouncement of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) Based on the reporter's transcript, the court ordered defendant to pay a fine of $590. The court did not mention or impose a parole revocation restitution fine, a court operations fee, a criminal conviction fee, or a citation processing fee. Because the minute order lists a different amount for the restitution fine, and a suspended parole revocation fine and fees the court did not mention or impose, I would order the trial court to correct the sentencing minute order and abstract of judgment to correspond to its oral pronouncement of judgment. (See People v. Zackery (2007) 147 Cal.App.4th 380, 389.)
LAVIN, J.