Opinion
C088459
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR GOMEZ-MENDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE020476)
After a jury found defendant, Oscar Gomez-Mendez, guilty of mayhem and personally using a deadly or dangerous weapon, the trial court denied probation, sentenced him to five years in prison, and imposed various costs. On appeal, defendant contends: (1) the trial court erred in concluding defendant was presumptively ineligible for probation, and (2) violated defendant's due process rights by imposing various fines and fees. We affirm the judgment.
FACTS AND PROCEEDINGS
The victim and his family went to defendant's home for a social visit. After each man consumed multiple beers, they argued and the two men began to fight each other in the backyard of the residence. During the fight, defendant hit his victim in the face multiple times with a broken glass bottle. The victim bled profusely, required multiple stitches in multiple places, and lost two teeth.
The jury found defendant guilty of mayhem (Pen. Code, § 203; statutory section references that follow are to the Penal Code), and further found that defendant personally used a deadly or dangerous weapon during the commission of mayhem (§ 12022, subd. (b)(1)). The jury acquitted defendant on the charge of assault with a deadly weapon.
A probation officer's presentence report stated that, pursuant to section 1203, subdivision (e)(2), defendant was ineligible for probation absent unusual circumstances, because he used a deadly weapon when he committed the mayhem offense. In a presentence pleading, defense counsel agreed that defendant's use of a broken bottle as a weapon rendered him presumptively ineligible for probation.
At the sentencing hearing, the trial court observed that defendant "engaged in an extremely violent crime," by "stabbing into [the victim's] face" with a broken beer bottle, The court denied probation, explaining it "[did] not find that there [we]re any unusual circumstances warranting a grant of probation." The trial court imposed a total term of five years, consisting of the middle term of four years for the mayhem offense, and an additional year for the deadly or dangerous weapon enhancement.
The trial court ordered restitution to the victim in the amount of $7,564.73 (§ 1202.4, subd. (f)) and imposed a $300 restitution fine and matching suspended parole revocation fine (§§ 1202.4, 1202.45), along with the $40 court operations fee (§ 1465.8) and the $30 criminal conviction fee (Gov. Code, § 70373). The trial court declared "[a]ll other fines and fees . . . waived due to defendant's limited income and his lengthy prison sentence."
Defendant timely appealed.
DISCUSSION
I
Section 1203(e)(2)
In his opening brief, defendant claims the trial court abused its discretion when it denied probation "under a mistaken belief that [defendant] was statutorily ineligible for probation absent unusual circumstances." Specifically, defendant argues in his opening brief that he was not presumptively ineligible for probation pursuant to section 1203, subdivision (e)(2), because the jury acquitted him of the charge of assault with a deadly weapon. Further, defendant contends his counsel provided ineffective assistance by failing to raise this argument at sentencing. In his reply brief, defendant appears to concede that this argument lacks merit.
In any event, the People argue that defendant "arguably forfeited this claim on appeal," because counsel did not raise it at sentencing, but "choose[ ] to address [defendant's] claim on the merits" because defendant claims counsel was ineffective at sentencing.
We conclude the trial court did not err, and therefore need not address defendant's claim of ineffective assistance of counsel.
"The decision whether to grant or deny probation is reviewed under the abuse of discretion standard." (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) We review for substantial evidence a trial court's factual findings that lead to a decision a defendant is presumptively ineligible for probation. (See People v. Dove (2004) 124 Cal.App.4th 1, 10-11.)
Here, the trial court's determination that defendant was presumptively ineligible for probation because he used a deadly weapon in connection with his mayhem offense was (a) unconstrained by the jury's acquittal on the assault with a deadly weapon offense, and (b) supported by substantial evidence.
As to the former, the trial court's decision was not constrained by the jury's acquittal on the assault offense, because "California law affords the trial court broad discretion to consider relevant evidence at sentencing. . . [¶] . . . Unless specific findings are made, 'the jury cannot be said to have "necessarily rejected" any facts when it returns a general verdict . . . .' " (People v. Towne (2008) 44 Cal.4th 63, 85-86 [quoting United States v. Watts (1997) 519 U.S. 148, 155].) Thus, the jury's acquittal on the assault with a deadly weapon offense did not constitute a specific finding that necessarily rejected the proposition that defendant used a deadly weapon during his fight with the victim.
As to the question of substantial evidence, the trial court's decision was supported by substantial evidence. The record shows defendant stabbed the victim in the face with a broken bottle of glass; obviously a hard, sharp object. (See In re Todd L. (1980) 113 Cal.App.3d 14, 20 ["A broken bottle is traditionally viewed as a deadly weapon"]; People v. Sainz (1967) 253 Cal.App.2d 496, 501 ["the evidence is clear . . . that [defendant] assaulted [the victim] with a deadly weapon, a broken beer bottle"].)
Defendant makes no argument that, having implicitly found defendant presumptively ineligible for probation, the trial court abused its discretion by declining to find unusual circumstances that would have warranted probation in the interests of justice. Accordingly, we conclude the trial court did not abuse its discretion in denying probation.
II
Ability to Pay Hearing
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends principles of due process require we remand for a hearing on whether he can afford to pay the costs assessed by the trial court, aside from restitution to the victim. The People argue defendant has no constitutional right to a hearing on his ability to pay.
Curiously, the Attorney General in his respondent's brief also argued the costs imposed should be reviewed under the Eighth Amendment's "excessive fines" clause. Defendant accepted the People's suggestion, and, in his reply brief, contends that both due process principles and the "excessive fines" clause require relief.
First, we hold that Dueñas was wrongly decided regarding the issue of hearings on the ability to pay fines and fees before they may be ordered by the trial court.
Dueñas held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [ ]section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held "that although [ ]section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326 (Hicks), review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, at p. 19.) Another line of cases relied upon by Dueñas is related to this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664 ; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, at pp. 1166-1168.)
The fines and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "we do not hold that the imposition upon an indigent offender of a fine and 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." (Id. at p. 116, italics added.) In other words, "Dueñas does more than go beyond [the] foundation[al pillars of due process]; it announces a principle inconsistent with them." (Hicks, at p. 327, review granted Nov. 26, 2019, S258946.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; Aviles, supra, 39 Cal.App.5th at p. 1069; Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
In a related argument, defendant contends that imposition of the statutory minimum $300 restitution fine without consideration of his ability to pay violated the excessive fines clause of the Eight Amendment to the federal Constitution (U.S. Const., Amend. VIII.) We disagree.
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' [Citation.]" (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Id. at p. 1072.)
Here, we find that the $300 restitution fine imposed for mayhem is not grossly disproportional to the level of harm and defendant's culpability in this matter. Defendant viciously stabbed his guest in the face several times with a broken beer bottle, while the two fought in the backyard of defendant's home. The victim lost two teeth and required multiple stitches in multiple places. The societal harm and serious danger caused from combining alcohol and dangerous weapons is well-recognized. (See People v. Atkins (2001) 25 Cal.4th 76, 91 [noting the case law's recognition that " 'alcohol is so often a factor' " in violent crimes].) Accordingly, the $300 restitution fine imposed in this case is not excessive under the Eighth Amendment.
Accordingly, we reject defendant's challenges to the costs imposed at sentencing.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
HOCH, J.