Opinion
F076538
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. ANGEL A. MONTES, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CMS3475)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a short crime spree, a jury convicted appellant Angel A. Montes of attempted murder (Pen Code, §§ 664/187, subd. (a); count 1) and attempted murder of a public official (§ 217.1, subd. (b); count 2). The same victim was involved in both counts. In count 1, the jury found true the victim was a peace officer lawfully performing his duties under section 664, subdivision (e). In both counts, the jury found true appellant personally used a rifle (§ 12022.53, subd. (b)).
All future statutory references are to the Penal Code unless otherwise noted.
Appellant was also convicted of the following counts stemming from the same crime spree: two counts of resisting an officer by means of threats and violence (§ 69; counts 3 & 4); carjacking (§ 215, subd. (a); count 5); driving a motor vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 6); attempting to drive a motor vehicle without the owner's consent (§ 664/Veh. Code, § 10851, subd. (a); count 7); and vandalism (§ 594, subd. (a); count 8). In count 3 (resisting) the jury found true appellant personally used a rifle (§ 12022.5, subd. (a)). In count 5 (carjacking), the jury found true appellant personally used a handgun (§ 12022.53, subd. (b)).
Different peace officers were involved in counts 3 and 4. The victim in counts 1 and 2 was the same officer involved in count 3.
In count 2 (attempted murder of a public official), appellant was sentenced to prison for 15 years to life. In count 5 (carjacking), he received an upper term of nine years, with a consecutive 10 years for the firearm enhancement. In the remaining convictions, the court imposed various consecutive one-third subordinate terms. Appellant's aggregate prison sentence was 35 years four months, plus 15 years to life.
In count 1, which involved the other attempted murder charge involving the same victim, a prison sentence of seven years to life was imposed. An additional 10 years was imposed for the firearm enhancement. This sentence was stayed pursuant to section 654.
Appellant raises numerous issues on appeal, and some of his claims have merit. We agree with the parties that appellant was improperly convicted twice for the attempted murder of the same victim. We determine appellant's conviction in count 1 must be vacated. We also agree with the parties that the sentences in count 3 (resisting) and count 7 (attempting to drive a motor vehicle without the owner's consent) must be stayed pursuant to section 654 because these convictions arose from acts that supported other convictions in this matter.
In addition, we remand this matter for further proceedings in count 6 (driving a motor vehicle without the owner's consent). Based on our high court's recent opinion in People v. Bullard (2020) ___ Cal.5th ___ (Bullard), Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47), now applies to any taking of a vehicle that is not worth more than $950. (Bullard, supra, ___Cal.5th___ [2020 Cal. LEXIS 1917, at *10].) Based on the change in law, instructional error occurred. We will conditionally reduce the conviction in count 6 to a misdemeanor but remand for the People to elect whether to retry appellant on a felony charge or accept the misdemeanor. (See People v. Jackson (2018) 26 Cal.App.5th 371, 381.) When resentencing occurs in this matter, the court shall exercise its discretion whether to strike or dismiss the imposed firearm enhancements pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620).
A Supreme Court opinion, even one that is not otherwise retroactive, governs all cases still pending on direct review when the decision is rendered. (In re Richardson (2011) 196 Cal.App.4th 647, 663-664.)
We reject appellant's assertion that the conviction in count 7 (attempting to drive a motor vehicle without the owner's consent) must likewise be reduced to a misdemeanor because of Proposition 47. We agree with respondent that other evidence sufficiently established this vehicle's value above $950, rendering the instructional error harmless.
Finally, appellant relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to assert his various constitutional rights were violated when the court imposed certain assessments and a restitution fine against him. We reject his constitutional challenges. We vacate the conviction in count 1 and we stay the sentences imposed in counts 3 and 7. We remand for further proceedings in count 6 and for resentencing. In all other respects, we affirm.
BACKGROUND
Appellant did not offer any evidence at trial. We provide a summary of the prosecution's material trial evidence.
I. Appellant's Crime Spree.
In November 2016, and in a span of less than an hour, appellant underwent a crime spree that involved driving a Ford Taurus without permission, carjacking a pickup truck, and vandalizing and attempting to take a tractor. When a deputy contacted him that morning, he resisted arrest and attempted to shoot the deputy. He continued to resist arrest when a second deputy arrived. It was not until a third deputy arrived and tased appellant that he stopped resisting.
A. Taking the first vehicle (count 6).
The first vehicle which appellant took, a 2002 green Ford Taurus, was parked outside the owner's residence in Hanford. The owner had started this vehicle and left it idling. At about 7:00 a.m. on the day in question, appellant got into the Taurus and he drove it away without the owner's permission.
It is undisputed the prosecution failed to establish the value of this Ford Taurus at trial. That failure is the subject of appellant's claim that this conviction in count 6, along with the conviction in count 7 (attempting to drive away the tractor), must be reduced to misdemeanors under Proposition 47.
B. The carjacking (count 5).
The carjacking occurred a short time later that same morning. The victim was driving his employer's pickup truck and he was on the way to inspect some fields in Hanford. The victim stopped at a stop sign. He was waiting to cross a highway when appellant drove behind him and stopped. Appellant approached the victim. The victim's driver's side window was up. According to the victim, appellant held a gun, which he pointed at him through the glass. Appellant demanded the truck. Appellant said police were chasing him. The victim got out of the truck and appellant drove it away.
Law enforcement never recovered this gun.
Law enforcement was notified of this carjacking at about 7:41 a.m. that same morning. At trial, the victim identified appellant as the person who took the truck. The Ford Taurus taken in the first crime was found idling near the scene of this carjacking.
C. Attempting to take the tractor and its vandalism (counts 7 and 8).
Sometime that same morning and also in the Hanford area, a John Deere tractor was found vandalized. The tractor had been parked in a field. The owner discovered the tractor's glass door had been broken. It cost around $1,800 to repair the vandalism.
Earlier that same morning, the tractor had been in use for the owner's business. The tractor, however, had developed an oil leak and it was parked until it could be serviced. The owner testified the tractor would have been drivable. The key for the tractor, however, had not been left in the ignition.
Circumstantial evidence connected appellant to the tractor. Food was found inside the cab of the tractor. The victim of the carjacking identified a photograph of that food as depicting his lunch which had been taken when his work truck was carjacked. Although it was not conclusive, shoe prints around the tractor were "very close" in similarity to appellant's shoes, and the prints appeared to be of the same type. A partial muddy shoe print was found inside the cab of the tractor. It appeared similar to appellant's shoe print. In addition, a set of keys was found inside the tractor. The keys were from one of the vehicles which appellant had taken that morning.
During closing argument, the prosecutor asserted appellant clearly attempted to take the tractor because he got into it. The prosecutor argued appellant became frustrated and broke the tractor's window. In count 7, the jury found appellant guilty of attempting to drive the tractor without the owner's consent (§ 664/Veh. Code, § 10851, subd. (a)).
It was not clear which keys law enforcement recovered from the tractor.
D. Attempted murder and resisting arrest (counts 1, 2 and 3).
The attempted murder occurred when a deputy sheriff, Carlos Santos, tried to take appellant into custody. About 10 minutes after law enforcement had been notified about the carjacking, law enforcement personnel saw appellant running. Santos intercepted appellant not far from the scene of the carjacking. Santos exited his patrol vehicle holding a loaded and fully automatic AR-15 rifle. He aimed the rifle at appellant, and he ordered appellant to get on the ground. Appellant complied.
Santos aimed his rifle at appellant because law enforcement had been notified the carjacking suspect had used a pistol. Santos approached appellant to take him into custody. The safety on Santos's rifle was in the "off" position and a round was chambered to be fired. In order to handcuff appellant, Santos placed his rifle on the ground. As Santos started to handcuff appellant, appellant bucked and threw Santos off him. Santos rolled a short distance down a muddy decline. As Santos tried to regain his footing, he saw appellant running towards the rifle. Appellant grabbed the rifle and ran back towards Santos. Appellant jumped on top of Santos. Appellant initially held the rifle horizontally across Santos's chest, pressing down. Appellant then pointed the rifle at Santos's face.
Santos testified he failed to get the rifle's sling over his head when he exited his patrol vehicle and contacted appellant. The sling would have allowed Santos to keep the rifle on him while he handcuffed appellant.
Santos grabbed the muzzle and they began to struggle over the rifle. Santos punched appellant's face several times. They struggled for a period of time. While they fought, a second deputy arrived. At gunpoint, the second deputy ordered appellant to stop fighting. Appellant put up both hands and said, "Okay, okay, I'm sorry." At trial, the second deputy testified that, when he arrived on scene, he saw appellant on top of Santos, and they were fighting. At that point, the AR-15 rifle was about five yards away from the fight.
At trial, Santos testified he thought he was going to die when appellant pointed the rifle at his face. However, Santos admitted he could not tell if appellant had pulled the trigger, and Santos did not know whether appellant had had his hand on the trigger. Santos did not know why the rifle had not fired.
This incident occurred in November 2016. As a result of his interaction with appellant, Santos suffered a herniated disk in his neck. He was off work until the early or middle part of the following January. He also suffered scratches to his hands, forearms and wrists.
E. Resisting the second deputy (count 4).
After the second deputy arrived and intervened, the two deputies tried to handcuff appellant, but he continued to struggle. Appellant kicked and resisted. He was told to stop fighting and resisting, but he did not comply. It was not clear if appellant was armed or not. The deputies struck appellant multiple times. A third responding deputy arrived and tased appellant, who was finally handcuffed.
After appellant was taken into custody, a deputy inspected Santos's rifle. The rifle was dirty. The safety was off and it was set to fire. At trial, this deputy explained a rifle like this may not fire if it is dirty. The deputy stated Santos's rifle had been full of mud. The deputy opined the mud possibly caused it to not fire.
II. Appellant's Interview With Law Enforcement.
A deputy interviewed appellant about 90 minutes after he was taken into custody. During his interview, appellant often rambled, he made strange statements, and he was incoherent at times. Although it was not clear, appellant indicated he had ingested crystal methamphetamine either one or two days before. He indicated he had been using methamphetamine since at least 2013. At trial, the interviewing deputy testified she believed appellant had understood her questions in general. She also believed he had understood he was speaking with law enforcement.
Law enforcement did not obtain a sample of appellant's blood to test for possible drug levels. A deputy who had been present during appellant's interview testified as a drug expert. Based on his observations of appellant, the drug expert opined at trial appellant showed symptoms he was coming down from a high. The expert believed appellant's symptoms were consistent with his claim he had ingested methamphetamine one or two days before.
Appellant admitted taking the Ford Taurus. He said the Taurus had been idling when he took it. He also admitted carjacking the truck, but he said he had used a knife and not a gun. However, he later said he had a Glock 17 and an AK-47. Appellant indicated he drove the truck in mud near the tractor. He said he broke the tractor's windows because " 'it automatically locked on me.' "
The interviewing deputy testified that, prior to the interview, she had not realized a Ford Taurus had been taken. She initially discussed a green Honda with appellant. During their interview, it was appellant who had first mentioned a Taurus. Before discussing the Taurus, however, he had first talked about three other vehicles which had not been reported stolen. Appellant said the Taurus had been blue.
Appellant admitted he fought with Santos. Appellant referred to Santos as " ' the guy who came out with the gun[.]' " He said he started fighting Santos because Santos " ' was hurting me so I got mad and I just started fighting him[.] I saw the gun and I tried to shoot him, I guess.' " Appellant admitted pointing the rifle at Santos. Appellant made statements indicating he had tried to shoot Santos. At one point, appellant said he thought Santos was going to shoot him. Later in his interview, however, appellant said he never wanted to kill Santos, just hurt him.
DISCUSSION
I. We Vacate Appellant's Conviction In Count 1 Because He Was Convicted Twice For The Same Offense.
We agree with the parties an improper conviction occurred in this matter. The charges in counts 1 and 2 both involved the attempted murder of Santos. These convictions, however, stemmed from the same criminal act. Thus, he was improperly convicted twice for the same offense. (See § 954; see also People v. Vidana (2016) 1 Cal.5th 632, 650-651; People v. Coyle (2009) 178 Cal.App.4th 209, 211, 217-218 [defendant improperly convicted of three counts of murder for killing one person].) Consequently, either the conviction in count 1 or the conviction in count 2 must be vacated. On this point, the parties disagree.
In count 1, appellant was convicted of attempting to murder Santos in violation of sections 664 and 187, subdivision (a). The jury found true Santos was a peace officer lawfully performing his duties within the meaning of section 664, subdivision (e). In relevant part, section 664, subdivision (e), prohibits the attempted murder of "a peace officer or firefighter" when the defendant knows or reasonably should know the victim is a peace officer or firefighter "engaged in the performance of his or her duties[.]" A violation results in a prison term of seven years to life. (§§ 664, subd. (e); 3046, subd. (a)(1).) Appellant received this sentence, which was stayed.
In count 2, appellant was convicted of violating section 217.1, subdivision (b). This statute prohibits the attempted murder of enumerated public officials, including "any peace officer[.]" (§ 217.1, subds. (a), (b).) This statute makes it a crime to commit attempted murder "in retaliation for or to prevent the performance of the victim's official duties[.]" (Id., subd. (b).) A violation of this statute results in a prison term of 15 years to life. (Ibid.) Appellant received this sentence.
In addition to peace officers, section 217.1 lists many other public officials, including, but not limited to, the President and Vice President of the United States, state governors, justices, prosecutors, public defenders, and a large number of other enumerated law enforcement personnel. (§ 217.1, subd. (a).) This section does not list a firefighter as a protected public official. (Ibid.)
Appellant contends his conviction in count 2 must be reversed. He asserts the charge in count 1 is based on a specific statute, while the charge in count 2 is based on a general statute. He invokes the Williamson rule. In general, this states if a defendant's conduct violates both a general statute and a specific statute, the defendant can only be prosecuted under the specific statute. (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy); In re Williamson (1954) 43 Cal.2d 651, 654 (Williamson). Appellant argues he could not have been prosecuted in count 2 under section 217.1, subdivision (b).
In contrast, respondent asserts it is appropriate to vacate the conviction in count 1 and affirm the conviction in count 2. Respondent argues appellant should be punished with the longest potential term of imprisonment, and respondent notes the trial court designated count 2 as the principal term. Respondent contends the Williamson rule is inapplicable, and it did not preclude prosecution of the charge in count 2. As we explain, we agree with respondent and reject appellant's various assertions.
A. The Williamson rule did not preclude prosecution of appellant for violation of section 217.1 , subdivision (b) (count 2).
The Williamson rule states that, if a defendant's conduct violates both a general statute and a specific statute, the defendant can only be prosecuted under the specific statute. (Murphy, supra, 52 Cal.4th at p. 86; Williamson, supra, 43 Cal.2d at p. 654.) This rule applies under two alternative prongs: (1) when each element of a general statute corresponds to an element on the face of a special statute; or (2) when it appears from the statutory context that a violation of a special statute " 'will necessarily or commonly result' " in a violation of a general statute. (Murphy, supra, 52 Cal.4th at p. 86.)
In Williamson, the defendant pleaded guilty to a charge of conspiring to act as a contractor without a license. (Williamson, supra, 43 Cal.2d at p. 652.) His conviction occurred under the general conspiracy statute (§ 182), which makes it unlawful for two or more persons to conspire to commit any crime. (Williamson, supra, at pp. 652-653.) On appeal, he argued his conduct was punishable only as a misdemeanor under the Business and Professions Code, which contained a statute (Bus. & Prof. Code, § 7030) which criminalized conspiring with others to violate any provisions of " 'this chapter.' " (Williamson, supra, at p. 654.) The Supreme Court agreed, holding section 182 was a general statute covering conspiracies while section 7030 of the Business and Professions Code dealt with the specific crime of conspiring to violate certain licensing provisions. (Williamson, supra, at p. 654.) Thus, the specific statute controlled the general one. (Ibid.)
1. Three opinions provide guidance.
To better understand the Williamson rule, we summarize three opinions.
a. People v. Watson (1981) 30 Cal.3d 290.
In People v. Watson (1981) 30 Cal.3d 290, our high court held the Williamson rule was inapplicable where the defendant was charged with second degree implied malice murder following a fatal car crash. On appeal, the defendant had argued the more specific statute of vehicular manslaughter applied. (People v. Watson, supra, 30 Cal.3d at p. 294.) The Supreme Court rejected this argument, finding a prosecution for murder (§ 187) requires malice while vehicular manslaughter (§ 192) covers a killing without malice. (People v. Watson, supra, at p. 296.) Because of the malice requirement, a violation of the vehicular manslaughter statute would not necessarily or commonly result in a violation under the general statute for murder. (People v. Watson, at p. 296.)
At least one appellate court has cautioned People v. Watson "should not be read as holding that the Williamson rule is inapplicable whenever a general statute contains an element not found in a special statute." (People v. Henry (2018) 28 Cal.App.5th 786, 792-793 (Henry).) Instead, the entire statutory context must be examined to determine if violation of a special statute will necessarily or commonly result in a violation of a general statute. (Id. at p. 793.)
b. Murphy , supra , 52 Cal.4th 81.
In Murphy, the defendant submitted a false report to a deputy sheriff, stating her vehicle had been stolen. (Murphy, supra, 52 Cal.4th at p. 84.) The defendant was convicted of three felonies: (1) procuring or offering a false or forged instrument for filing or recording (§ 115, subd. (a)); (2) knowingly presenting a false or fraudulent insurance claim (§ 550, subd. (a)(4)); and (3) knowingly presenting a false statement in an insurance claim (§ 550, subd. (b)(1)). (Murphy, supra, 52 Cal.4th at p. 85.) The high court held the felony conviction under section 115, subdivision (a), was precluded by special statutes in the Vehicle Code, including one that makes it a misdemeanor to make or file a false report of vehicle theft (Veh. Code, § 10501, subd. (a)). (Murphy, supra, 52 Cal.4th at pp. 84-85.)
The Murphy court determined section 115 is more general than Vehicle Code section 10501 because the former statute "applies to a broader range of documents that may be filed in any public office." (Murphy, supra, 52 Cal.4th at p. 88.)
Our Supreme Court stated, "Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute." (Murphy, supra, 52 Cal.4th at p. 86.) The high court noted that, because the Legislature had enacted a specific statute covering much of the same ground as a more general law, it is " 'a powerful indication that the Legislature intended the specific provision alone to apply.' " (Ibid.) However, the Murphy court cautioned that, "if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely." (Id. at p. 87.)
The Murphy court also commented that, "[i]n adopting a specific statute, the Legislature has focused its attention on a particular type of conduct and has identified that conduct as deserving a particular punishment. Consequently, we infer that the Legislature intended that such conduct should be punished under the special statute and not under a more general statute which, although broad enough to include such conduct, was adopted without particular consideration of such conduct. Whether the Legislature has addressed the specific conduct in a separate statute rather than in a clause or subdivision of a statute that includes other conduct is not determinative in our effort to discern the Legislature's intent." (Murphy, supra, 52 Cal.4th at p. 91.)
The high court determined the filing of a false vehicle theft report would commonly violate section 115. (Murphy, supra, 52 Cal.4th at p. 94.) Consequently, under the Williamson rule, it was inferred the Legislature, in specifying that such conduct constitutes a misdemeanor, intended to create an exception to the felony punishment specified in the more general statute. As such, the defendant should not have been charged with violating section 115, and her conviction on that charge was reversed. (Murphy, supra, at pp. 94-95.)
c. Henry , supra , 28 Cal.App.5th 786.
In Henry, supra, 28 Cal.App.5th 786, the defendant was convicted of felony false personation (§ 529, subd. (a)(3)) after giving a friend's name to a police officer and signing a citation with that name. (Henry, supra, 28 Cal.App.5th at p. 789.) The Henry court held the Legislature had intended the defendant's conduct to be prosecuted as a misdemeanor under Vehicle Code section 40504, subdivision (b). This statute criminalizes the signing of a false or fictitious name on a promise to appear for a traffic citation. (Henry, supra, at p. 789.) The appellate court determined Vehicle Code section 40504, subdivision (b), is a special statute compared to section 529, subdivision (a)(3). (Henry, supra, 28 Cal.App.5th at p. 796.) Henry concluded that signing a written promise to appear with a false name, as the defendant had done, is conduct that will commonly result in a violation of the general statute (§ 529, subd. (a)(3)). (Henry, supra, 28 Cal.App.5th at p. 796.) The appellate court found no reason why the Williamson rule should not apply. (Henry, supra, at p. 796.) Nothing indicated a contrary legislative intent. (Id. at pp. 796-797.) Thus, the defendant's felony conviction was reversed. (Id. at p. 797.)
2. The Williamson rule is inapplicable in this matter.
As a starting point, we need not answer the question of whether or not section 217.1, subdivision (b), is a general statute and section 664, subdivision (e), is a specific statute. Instead, for purposes of our analysis, we will presume appellant's labels are correct. However, with those presumptions, the Williamson rule is inapplicable.
a. The statutes do not satisfy the first Williamson prong.
The first prong under Williamson is whether each element of the general statute corresponds to an element on the face of the special statute. (Murphy, supra, 52 Cal.4th at p. 86.) Section 217.1, subdivision (b), requires an attempted murder to be done in retaliation or to prevent the performance of the peace officer's official duties. No such elements exist in section 664, subdivision (e). As such, each element of the presumed general statute does not correspond to an element on the face of the presumed special statute. Thus, the first prong of the Williamson rule is not met.
We note a perpetrator could attempt to kill a firefighter in violation of section 664, subdivision (e), but such an attempted murder would never constitute a violation of section 217.1, subdivision (b) (which does not list a firefighter as a protected public official). Our Supreme Court, however, makes it clear the Williamson rule is applied "without giving any consideration to the circumstance that a different clause of the special statute at issue could have been violated without violating the general statute." (Murphy, supra, 52 Cal.4th at p. 89.)
b. The statutes do not satisfy the second Williamson prong.
The second prong under Williamson is whether " 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' " (Murphy, supra, 52 Cal.4th at p. 86.)
In his briefing, appellant focuses on this second prong. According to appellant, a perpetrator "necessarily" tries to prevent the performance of a peace officer's duties when the perpetrator attempts to murder a peace officer while knowing (or reasonably should know) the victim is engaged in the performance of his or her duties. Likewise, he contends an attempted murder under section 664, subdivision (e), will "commonly" result in an act done to prevent the performance of the officer's duties. As such, appellant asserts a violation of the special statute (§ 664, subd. (e)) will "necessarily" and "commonly" result in a violation of the general statute (§ 217.1, subd. (b)). He maintains the second prong of Williamson is met. We disagree.
Section 217.1 imposes a prison term of 15 years to life for attempted murders done "in retaliation for" or "to prevent" the performance of official duties, including those of any peace officer. (§ 217.1, subds. (a), (b), italics added.) These elements do not appear in section 664, subdivision (e). Thus, the presumed general statute (§ 217.1, subd. (b)) contemplates more culpable conduct than the presumed specific statute (§ 664, subd. (e)). It is very reasonable to infer the Legislature intended to punish this conduct more severely. (See Murphy, supra, 52 Cal.4th at p. 87.) Therefore, section 664, subdivision (e), does not cover "the same ground" as section 217.1, subdivision (b). (See Murphy, supra, 52 Cal.4th at p. 86.) Consequently, and unlike in Murphy, no "powerful indication" exists the Legislature intended the provisions of section 664, subdivision (e), to apply to the exclusion of section 217.1, subdivision (b). (See Murphy, supra, 52 Cal.4th at p. 86.)
Moreover, although these statutes overlap in some regards, nothing reasonably suggests the Legislature intended for an alleged attempted murder of a peace officer to be prosecuted exclusively under section 664, subdivision (e). Instead, the legislative history strongly suggests otherwise. Subdivision (e) of section 664 was promulgated in 1994. (Former § 664; see also Stats. 1994, ch. 793 (Assem. Bill No. 2433).) Four years later, the Legislature added "any peace officer" as a public official falling under section 217.1, subdivision (b). (Former § 217.1, subd. (b); see also Stats. 1998, ch. 748 (Assem. Bill No. 2154).) The fact the Legislature added "any peace officer" to section 217.1 a mere four years after promulgating section 664, subdivision (e), is compelling evidence the Legislature did not intend section 664, subdivision (e), to preclude prosecutions of attempted murder of peace officers under section 217.1, subdivision (b). Therefore, and unlike in Henry, we can infer a legislative intent not to apply the Williamson rule. (See Henry, supra, 28 Cal.App.5th at pp. 796-797.)
Section 217.1 was originally enacted in 1953. (Stats. 1953, ch. 32, § 2, p. 634.) As stated in the "comments" section of the September 2, 1998, Assembly Bill summary, the author intended to amend this statute because "[j]urors, peace officers, prosecutors, judges and other public officials are facing ever-increasing personal attacks in retaliation for carrying out their official duties. In addition, criminals are now targeting their families as well. This bill would include, in an already existing Penal Code section, those members of our justice system that were inadvertently left out when the statute was enacted. The protection of jurors and those that work in our justice system is an important issue." (<http://www.leginfo.ca.gov/pub/97-98/bill/asm/ab_2151-2200/ab_2154_cfa_19980902_174819_asm_floor.html>.)
In general, we are to presume the Legislature is aware of existing judicial decisions when it enacts particular legislation. (See Leider v. Lewis (2017) 2 Cal.5th 1121, 1135.) The Supreme Court announced the Williamson rule in 1954. (Williamson, supra, 43 Cal.2d at p. 654.) As such, we must presume the Legislature was aware of Williamson and its progeny when it amended section 217.1 in 1998 to included "any peace officer" as a protected official. This presumption further supports a conclusion the Legislature did not intend for section 664, subdivision (e), to preclude the prosecution under section 217.1, subdivision (b), for the attempted murder of peace officers.
Finally, in conducting our analysis, we must keep in mind the Williamson rule " 'is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.]" (Murphy, supra, 52 Cal.4th at p. 86.) The disputed statutes in this matter do not appear to be in conflict. Attempted murder of an on-duty peace officer can occur for many reasons, including personal animus. Consequently, we cannot declare that attempted murders of on-duty police officers, even when the perpetrator knows or reasonably should know the victim is a peace officer engaged in the performance of his or her duties, are necessarily or commonly committed as "to prevent the performance of the victim's official duties[.]" (§ 217.1, subd. (b).)
In its clearest application, the Williamson rule is triggered when a violation of a provision of a special statute would inevitably constitute a violation of a general statute. (Murphy, supra, 52 Cal.4th at p. 86.) Such a situation is not present here. We cannot declare a violation of section 664, subdivision (e), will necessarily or commonly result in a violation of section 217.1, subdivision (b). In any event, the legislative history strongly suggests we should not apply the Williamson rule. As such, the second prong of the Williamson rule is inapplicable. Thus, contrary to appellant's arguments, he could be prosecuted for attempted murder under both section 664, subdivision (e), and section 217.1, subdivision (b). It was for the jury to decide guilt.
Appellant quotes the prosecutor's closing argument in an effort to demonstrate how a violation of section 664, subdivision (e), would inevitably and commonly also be a violation of section 217.1, subdivision (b). During closing argument, the prosecutor asserted appellant tried to kill Santos "to prevent the performance of official duties." According to the prosecutor, appellant did not have a personal vendetta against Santos. Instead, appellant "wanted to get away, he wanted to stop that arrest, he wanted to escape." The prosecutor's arguments do not alter our conclusion. Instead, when analyzing whether the Williamson rule applies, our focus is ultimately on legislative intent. (See Murphy, supra, 52 Cal.4th at pp. 86-87.) Despite the prosecutor's arguments, the context of the applicable statutes does not evidence a legislative intent for section 664, subdivision (e), to preclude prosecutions under section 217.1, subdivision (b).
B. It is appropriate to vacate the conviction in count 1 and affirm the conviction in count 2.
We agree with respondent it is appropriate to vacate appellant's conviction in count 1 and affirm the conviction in count 2. To support this remedy, respondent relies upon People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad).
In Muhammad, the defendant was convicted of four stalking offenses. (Muhammad, supra, 157 Cal.App.4th at p. 486.) The appellate court reversed three of his four stalking convictions after concluding the applicable stalking statutes do not create multiple separate offenses, but, instead, describe alternate punishments for the single offense of stalking. (Ibid.) At sentencing, the trial court had designated one of the four stalking convictions as the principal term. (Id. at p. 494.) The appellate court agreed it was appropriate to affirm the conviction representing the principal term and vacate his other three stalking convictions, which carried lesser terms of imprisonment. (Ibid.)
In this matter, the trial court sentenced appellant to prison for 15 years to life in count 2. The court imposed a sentence of seven years to life in count 1, but stayed that sentence. We agree with respondent it is appropriate to vacate appellant's conviction in count 1 and affirm his conviction in count 2. This remedy comports with how the trial court exercised its sentencing discretion. (See Muhammad, supra, 157 Cal.App.4th at p. 494.) This remedy also ensures appellant's punishment is commensurate with his overall criminal liability. (See, e.g., People v. Wilson (2019) 33 Cal.App.5th 559, 574 [when a defendant is improperly convicted of alternative sexual offenses, the defendant should be left standing convicted of the alternative offenses most commensurate with criminal liability].)
Accordingly, we vacate appellant's conviction in count 1. We remand for resentencing.
II. The Sentences In Counts 3 And 7 Must Be Stayed.
The parties agree, as do we, that appellant's sentences in counts 3 and 7 must be stayed pursuant to section 654. The jury found true appellant personally used a firearm during the commission of resisting Santos in count 3. We agree with the parties the attempted murder of Santos (counts 1 and 2) was based on the same act as his resisting (count 3). Likewise, we agree that appellant's vandalism of the tractor (count 8) involved the same act as his attempt to take that tractor (count 7).
Although respondent agrees with appellant that the convictions in counts 7 and 8 are based on the same act, respondent asserts the sentence in count 8 should be stayed. This appears to be an oversight. The subordinate term in count 7 (four months) is less than the subordinate term in count 8 (eight months). Accordingly, it is the sentence in count 7, and not count 8, which should be stayed. This will provide for appellant's longest possible term of imprisonment. (§ 654, subd. (a).) Respondent does not otherwise dispute appellant's arguments.
Although section 654 permits multiple convictions arising from a single act or omission, it bars multiple punishment for those convictions. (People v. Correa (2012) 54 Cal.4th 331, 337; § 654, subd. (a).) Therefore, it is appropriate to stay the sentences in counts 3 and 7. Staying these sentences will ensure appellant is not punished for multiple convictions arising from the same acts, but will also provide for the longest term of imprisonment. (§ 654, subd. (a).) We remand for resentencing.
III. At Resentencing, The Trial Court Shall Exercise Its Discretion Under Senate Bill 620.
At the time of sentencing in this matter, the trial court was required to impose additional prison terms for the firearm enhancements found true under section 12022.5 and section 12022.53. (Former § 12022.5, subd. (a); former § 12022.53, subd. (d).) On October 11, 2017, however, the Governor approved Senate Bill 620, which amended sections 12022.5 and 12022.53. A trial court now has discretion to strike or dismiss these firearm enhancements. (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
The parties agree, as do we, these amendments apply retroactively to appellant because his case is not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is appropriate for the court to exercise its new sentencing discretion. Respondent asserts a remand for this issue would serve no purpose. According to respondent, no reasonable court would exercise its discretion to strike appellant's respective firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) To support its position, respondent focuses on the sentencing record. The court imposed the maximum possible sentence against appellant, and the court commented on the egregious nature of appellant's actions.
We agree with respondent that the trial court's comments at sentencing, and its sentencing choices, strongly suggest the court would not have struck or dismissed the firearm enhancements if it had such discretion at the original sentencing. However, based on various errors, we are remanding this matter for resentencing. As such, it is appropriate in the interests of justice for the court to exercise its sentencing discretion regarding the firearms when appellant is resentenced. (See § 1260 [an appellate court may remand the cause to the trial court for further proceedings as may be just under the circumstances].) Accordingly, we disagree with respondent that the court should be prohibited from exercising this discretion. We take no position on how the court should exercise its discretion regarding the firearm enhancements when appellant is resentenced.
IV. Due To Prejudicial Instructional Error, We Conditionally Reduce The Conviction In Count 6 To A Misdemeanor And Remand For Further Proceedings.
In count 6, appellant was convicted of driving a motor vehicle (the Ford Taurus) without the owner's consent (Veh. Code, § 10851, subd. (a)). In count 7, he was convicted of attempting to drive a motor vehicle (the tractor) without the owner's consent (§ 664/Veh. Code, § 10851, subd. (a)). In the present claim, he argues these felony convictions must be reduced to misdemeanors. He contends the prosecution failed to prove the vehicles in question had fair market values that exceeded $950. His arguments stem from Proposition 47.
Proposition 47 became effective in November 2014. (People v. Gutierrez (2018) 20 Cal.App.5th 847, 854 (Gutierrez).) It was designed to reduce the punishment for certain drug and theft offenses. (Ibid.) Among other things, Proposition 47 reclassified a variety of grand theft crimes to petty theft offenses when the value of the property taken does not exceed $950. (Gutierrez, supra, 20 Cal.App.5th at p. 854.) Proposition 47 amended or added several statutory provisions, including section 490.2. (People v. Page (2017) 3 Cal.5th 1175, 1179 (Page).) Section 490.2 provides that "obtaining any property by theft" is petty theft, which is punished as a misdemeanor if the value of the property taken is $950 or less. (§ 490.2, subd. (a).)
Following passage of Proposition 47, the appellate courts disagreed whether section 490.2 applied to vehicle theft under Vehicle Code section 10851. (Gutierrez, supra, 20 Cal.App.5th at p. 854.) About two months after appellant was sentenced in this matter, our Supreme Court resolved this dispute. In Page, the high court confirmed Vehicle Code section 10851 has both nontheft and theft forms of the offense. (Page, supra, 3 Cal.5th at p. 1183, citing and reviewing People v. Garza (2005) 35 Cal.4th 866, 871.) Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner's consent, and with intent either to permanently or temporarily deprive the owner of the vehicle with or without an intent to steal the vehicle. (Veh. Code, § 10851, subd. (a).) In contrast, theft requires a taking of property with the intent to permanently deprive the owner of possession. (Page, supra, 3 Cal.5th at p. 1182.) Page held a form of theft is present when a defendant unlawfully takes a vehicle with the intent to permanently deprive the owner of possession. (Id. at p. 1183.) The taking may be accomplished by driving the vehicle away. (Ibid.) In contrast, theft is not present when an unlawful driving of a vehicle occurs or continues after the theft is complete. (Ibid.) Likewise, a theft does not occur "when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal." (Ibid.)
Page held that Proposition 47's theft provision, section 490.2, covers the theft form of a Vehicle Code section 10851 offense. (Page, supra, 3 Cal.5th at p. 1183.) Thus, after the passage of Proposition 47, obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor. (Page, at p. 1187.)
In a footnote, our Supreme Court in Page noted that it was not considering whether equal protection or the avoidance of absurd consequences required extending misdemeanor treatment to a person "convicted for taking a vehicle without the intent to permanently deprive the owner of possession." (Page, supra, 3 Cal.5th at p. 1188, fn. 5.) The high court left this question for a later time. (Ibid.) On March 23, 2020, the high court in Bullard, supra, ___ Cal.5th ___ resolved this issue. Bullard holds that a person is not disqualified from Proposition 47 relief just because the person cannot prove he or she intended to keep the vehicle away from the owner indefinitely. (Bullard, supra, ___Cal.5th___ [2020 Cal. Lexis 1917, at *10].) In short, for purposes of Proposition 47, courts should not draw a distinction under Vehicle Code section 10851 between permanent and temporary vehicle takings. (Ibid.) "Proposition 47's substantive effect on [Vehicle Code] section 10851 can be summarized as follows: Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of [Vehicle Code] section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less." (Bullard, supra, ___Cal.5th___ [2020 Cal. Lexis 1917, at *29].)
The trial in this matter occurred prior to Page and Bullard. The jury was not instructed on the distinctions regarding how Vehicle Code section 10851 may be violated. The jury was never informed that any taking (or its attempt) required the prosecution to establish that the vehicles in question had a value of more than $950. Thus, instructional error occurred. (See People v. Jackson, supra, 26 Cal.App.5th at p. 378.)
The parties agree the prosecution failed to establish the value of the Ford Taurus in count 6. Respondent, however, contends that retrial is appropriate in count 6 to allow the prosecution to establish this amount and seek a felony conviction. Respondent further argues that the prosecution established the tractor's value in count 7 based on the $1,800 needed to repair it following appellant's vandalism. As such, respondent maintains that any instructional error in count 7 is harmless.
In contrast, appellant asserts that double jeopardy bars any retrial. According to appellant, the prosecution already had the chance to satisfy Proposition 47. Appellant also claims the cost to repair the tractor's vandalism is insufficient to establish its value.
We agree with respondent that retrial is permissible in count 6. "Double jeopardy forbids retrial after a reversal due to insufficient evidence to support the verdict." (In re D.N. (2018) 19 Cal.App.5th 898, 902.) However, double jeopardy is not implicated when the prosecution makes its case under the law as it stood at trial. (Ibid.)
Appellant relies on this court's opinion in In re D.N., supra, 19 Cal.App.5th 898, to bar retrial. This court held a retrial was barred by double jeopardy because, when the juvenile's contested jurisdiction hearing had occurred, the law had already changed and the prosecution was on notice that it had to establish the value of the vehicle in question to obtain a felony based on theft. (In re D.N., supra, 19 Cal.App.5th at p. 903.) "The People chose instead to gamble, and lost their bet, that the Supreme Court would find Vehicle Code section 10851 outside the ambit of Proposition 47 and Penal Code section 490.2." (Ibid.) This court denied a retrial on grounds of double jeopardy, and it reduced the juvenile adjudication from a felony to a misdemeanor. (Id. at pp. 903-904.)
In re D.N. is distinguishable. In this matter, the jury verdicts for counts 6 and 7 were clearly based on joyriding and not theft. In count 6, the jury found appellant guilty "of driving" the motor vehicle (i.e., the Ford Taurus) without the owner's consent and "with the intent to temporarily deprive the owner of possession" in violation of Vehicle Code section 10851, subdivision (a). (Italics added.) Likewise, in count 7, the jury found appellant guilty "of attempting to drive" the motor vehicle (i.e., the tractor) without the owner's consent and "with the intent to temporarily deprive the owner of possession" in violation of section 664 and Vehicle Code section 10851, subdivision (a).
When this matter went to trial, the prosecution was permitted to obtain felony convictions in counts 6 and 7 without necessarily establishing that the vehicles were valued at more than $950. (See Page, supra, 3 Cal.5th at p. 1183.) Prior to Bullard, the jury's specific findings would not have implicated Proposition 47 because appellant was not convicted of theft (count 6) or attempted theft (count 7). (See Page, supra, 3 Cal.5th at p. 1183.) Following Bullard, however, Proposition 47 is implicated in counts 6 and 7 so long as the value of the respective vehicle is $950 or less. (Bullard, supra, ___Cal.5th___ [2020 Cal. Lexis 1917, at *29].) Contrary to appellant's assertions, neither double jeopardy nor In re D.N. bars a retrial of count 6. (See People v. Jackson, supra, 26 Cal.App.5th at p. 378 & fn. 7.)
Turning to count 7, we agree with respondent that the cost of repairing the tractor was sufficient to establish that its value was above $950. As such, we disagree with appellant's assertion that count 7 must be reduced to a misdemeanor. Appellant relies primarily on People v. Swanson (1983) 142 Cal.App.3d 104 (Swanson), and People v. Simpson (1938) 26 Cal.App.2d 223 (Simpson).
In Swanson, jewels were stolen from a store, and the defendant argued that the acquisition cost ($52,000), and not the retail value (in excess of $130,000), should be used to determine the value of the jewelry. (Swanson, supra, 142 Cal.App.3d at p. 106.) Because the stolen property was valued more than $100,000, the defendant had received a sentence enhancement. (Ibid.) The Swanson court disagreed that the acquisition cost should be used to value the jewelry, and it determined the sentence enhancement was properly imposed. (Id. at pp. 108-109.)
In Simpson, second-hand magnetos had been stolen, and no testimony was provided regarding their mechanical condition, how long they had been used, or how they were used. Different witnesses had testified about the magnetos' outward appearance and gave approximate values. (Simpson, supra, 26 Cal.App.2d at p. 229.) The Simpson court held that it was improper for the jury to consider the cost of reinstalling any of the magnetos. Instead, the market value was needed. (Ibid.) The trial evidence, however, was insufficient to establish the fair market value of the magnetos, and the defendants' convictions were reduced to petty theft. (Id. at pp. 229-230.)
Both Swanson and Simpson are distinguishable, and they do not require reversal of the felony conviction in count 7. The tractor in count 7 had been in operation shortly before appellant vandalized it. The tractor, however, had developed an oil leak and it was parked until it could be serviced. The owner testified that the tractor had been drivable. It cost $1,800 to repair the damage caused to the tractor following appellant's vandalism. Based on this record, we agree with respondent that a reasonable jury could have drawn a reasonable inference that the tractor had a value over $950. (See People v. Livingston (2012) 53 Cal.4th 1145, 1166 [jury may make reasonable inferences based on circumstantial evidence].) As such, respondent is correct that the instructional error was harmless in count 7. (See People v. Merritt (2017) 2 Cal.5th 819, 832.)
Due to prejudicial instructional error, we conditionally reduce the conviction in count 6 to a misdemeanor. (See Bullard, supra, ___Cal.5th___ [2020 Cal. Lexis 1917, at *29].) We remand for the People to elect whether to retry appellant on a felony charge in count 6 or accept the misdemeanor. (See People v. Jackson, supra, 26 Cal.App.5th at p. 381.) V. Appellant Has Forfeited His Claims Under Dueñas; In Any Event, Dueñas Is Distinguishable From The Present Matter; The Trial Court Did Not Violate Appellant's Constitutional Rights; And Any Presumed Error Is Harmless.
In supplemental briefing, appellant challenges the imposition of assessments imposed against him under section 1465.8, subdivision (a)(1), and Government Code section 70373, subdivision (a)(1) (the assessments). He also challenges the restitution fine imposed against him under section 1202.4, subdivision (b)(1). He asserts he is indigent and the trial court failed to determine his ability to pay. He contends imposition of the assessments violates his rights to due process and equal protection. He argues the imposition of the restitution fine violates his rights to due process and the constitutional ban on excessive fines. He claims that, despite a failure to object below, he has not forfeited these issues. He seeks reversal of the assessments and restitution fine. In the alternative, he seeks a stay of the restitution fine until the prosecution proves he has the ability to pay. His assertions are based primarily on Dueñas, supra, 30 Cal.App.5th 1157.
According to our Supreme Court, "punishment" is a legal term of art meaning " 'a "fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him." ' " (People v. Ruiz (2018) 4 Cal.5th 1100, 1107.) In general, courts have held a restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361-363.) In contrast, a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) are not considered punishment. (People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373].)
Much has been written about Dueñas in the past year, both from this court and around the state. As such, we need not again recite the facts from Dueñas. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1052-1053 (Lowery); People v. Aviles (2019) 39 Cal.App.5th 1055, 1063-1065 (Aviles).) Instead, we find appellant's assertions unpersuasive. As an initial matter, appellant has forfeited these claims. In any event, Dueñas is distinguishable from the present matter, and appellant's constitutional rights were not violated. Finally, any presumed constitutional error is harmless beyond any reasonable doubt.
A. Appellant has forfeited his Dueñas-Related Claims.
In Dueñas, the defendant challenged the assessments and minimum restitution fine imposed against her. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In this matter, however, appellant made no such challenge and the maximum restitution fine was imposed against him. (§ 1202.4, subd. (b)(1).)
This court has previously held a defendant forfeits Dueñas-related claims when the maximum restitution fine is imposed and the defendant fails to object in the trial court. (Lowery, supra, 43 Cal.App.5th at p. 1054; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) We disagree an objection would have been futile or that this issue raises a pure question of constitutional law. To the contrary, appellant had a statutory right, and was obligated, to object to the imposition of the restitution fine above the $300 minimum. (§ 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is increased above the minimum].) A factual determination was required regarding his alleged inability to pay. Thus, appellant's objections below would not have been futile under governing law when this sentencing occurred. (Lowery, supra, 43 Cal.App.5th at p. 1054.)
We likewise reach the same conclusion with respect to the assessments. Because appellant failed to object to the maximum restitution fine, we likewise reject any assertion he may now complain the trial court imposed the assessments, which total $560. These claims are forfeited. (Lowery, supra, 43 Cal.App.5th at p. 1054.)
B. Dueñas is distinguishable from the present matter and it does not establish a violation of appellant's constitutional rights.
Even if appellant has not forfeited these claims, Dueñas is inapplicable and appellant was not deprived of his constitutional rights. The defendant in Dueñas lost her driver's license because she was too poor to pay juvenile citations. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) She continued to offend because aggregating criminal conviction assessments and fines prevented her from recovering her license. (Ibid.) The Dueñas court described this as "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.) The Dueñas court concluded the defendant faced ongoing unintended punitive consequences because of the imposed financial obligations. Dueñas determined those unintended consequences were "fundamentally unfair" for an indigent defendant under principles of due process. (Id. at p. 1168.)
The Dueñas court noted the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment to the United States Constitution. However, Dueñas stated "[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that '[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.' [Citation.]" (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8.)
This court has declined to expand Dueñas's holding beyond the unique facts found in Dueñas. In Lowery, two defendants were convicted for a series of armed robberies, and various fees, fines and assessments were imposed against them. (Lowery, supra, 43 Cal.App.5th at pp. 1048-1049.) Based on Dueñas, the defendants in Lowery challenged the imposition of some of those financial obligations. The Lowery court, however, rejected a due process challenge based on Dueñas. The Lowery court noted the "unique concerns addressed in Dueñas" were lacking. (Lowery, supra, at p. 1056.) Nothing established or even reasonably suggested the two defendants in Lowery faced ongoing unintended punitive consequences stemming from the imposition of fees, fines and assessments. The defendants did not establish how they suffered a violation of a fundamental liberty interest. To the contrary, the defendants had been incarcerated not because of their alleged indigency but because they were convicted of intentional criminal acts. Because unintended consequences were not present, the Lowery court held it was not fundamentally unfair for the trial court to impose fees, fines and assessments against the defendants without first determining their ability to pay. (Lowery, supra, at pp. 1056-1057.)
As in Lowery, the unique concerns addressed in Dueñas are lacking here. Appellant does not establish the violation of a fundamental liberty interest. His incarceration was not a consequence of prior criminal assessments and fines. He was not deprived of liberty because of his indigency. He was not caught in a cycle of "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [his] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.) He could have avoided the present convictions regardless of his financial circumstances. Dueñas is distinguishable and it has no application in this matter. (Lowery, supra, 43 Cal.App.5th at pp. 1054-1055.) In short, it was not fundamentally unfair for the trial court to impose the restitution fine and the assessments in this matter without first determining appellant's ability to pay. Therefore, we reject appellant's constitutional challenges based on Dueñas. (See Lowery, supra, 43 Cal.App.5th at pp. 1056-1057.)
Appellant's equal protection challenge is based primarily on Dueñas. We need not fully respond to the equal protection claim. We have already concluded Dueñas is distinguishable from the present matter and we will not apply it here. In any event, Dueñas based its holding on due process grounds, and not on equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.)
C. Appellant's additional constitutional challenges are without merit.
Apart from Dueñas, appellant argues the statutory scheme of setting restitution fines above the minimum is invalid because it relieves the sentencing court of its duty to impose a just punishment, and it fails to require a court to consider a state prisoner's ability to pay while incarcerated. He notes a restitution fine carries lasting negative consequences for an indigent person. He further contends a restitution fine is not reasonably related to a legitimate legislative purpose. Finally, he asserts the $10,000 restitution fine imposed against him violates the Eighth Amendment's prohibition against excessive fines. We reject these arguments.
Appellant notes section 1202.4 contains a formula by which a sentencing court may determine the appropriate felony restitution fine. Under this formula, the total is the product of the minimum fine multiplied by the number of years of imprisonment the defendant will serve, multiplied by the number of felony counts of which the defendant is convicted. (§ 1202.4, subd. (b)(2).) Appellant argues this formula encourages sentencing courts not to consider inability to pay when setting a fine above the statutory minimum.
1. Section 1202.4 is valid and it is reasonably related to a legitimate purpose.
The purpose of section 1202.4 is to permit a criminal victim who incurs economic loss as a result of a crime to receive restitution directly from the defendant convicted of that crime. (§ 1202.4, subd. (a)(1).) Section 1202.4 encompasses two types of restitution. There is direct restitution to a victim (§ 1202.4, subd. (f)), which is based on the amount of the loss the victim actually sustained. There are also restitution fines (§ 1202.4, subd. (b)), which are not directly related to the amount of loss sustained by a victim. (People v. Holman (2013) 214 Cal.App.4th 1438, 1451.) Restitution fines are deposited into the state's restitution fund. (§ 1202.4, subd. (e).)
Appellant does not identify how section 1202.4 impacts a fundamental interest. He also does not explain how this statute impacts a protected class. As such, the issue is whether section 1202.4 is rationally related to a legitimate governmental interest. (Lyng v. Automobile Workers (1988) 485 U.S. 360, 370; United States Department of Agriculture v. Moreno (1973) 413 U.S. 528, 533.) The United States Supreme Court has stressed that, when analyzing whether a statute is rationally related to a legitimate governmental interest, we are to be deferential. (Lyng v. Automobile Workers, supra, 485 U.S. at p. 370.) We are to presume legislative classifications are valid. (Ibid.)
Under this standard, it is clear section 1202.4 serves legitimate legislative purposes. The purpose of direct victim restitution is to make a victim reasonably whole. (People v. Holman, supra, 214 Cal.App.4th 1438, 1451.) The purpose of a restitution fine is to punish and deter future criminality. (People v. Bernal (2002) 101 Cal.App.4th 155, 168.) We see no reason to deem section 1202.4 in general, or restitution fines in particular, unconstitutional. Contrary to appellant's assertions, a sentencing court does have discretion whether or not to impose a restitution fine. (§ 1202.4, subds. (c), (d).) As such, we reject appellant's numerous arguments regarding the constitutionality of section 1202.4.
We note that, prior to Dueñas, various opinions had upheld the constitutionality of requiring defendants to pay restitution. (See People v. Smith (2011) 198 Cal.App.4th 415, 435 [noneconomic damages under § 1202.4, subd. (f)(3)(F) may be awarded against child molesters without violating equal protection]; People v. McGhee (1988) 197 Cal.App.3d 710, 715 [imposition of a maximum restitution fine does not violate due process]; People v. Glenn (1985) 164 Cal.App.3d 736, 740 [imposition of a restitution fine does not violate equal protection]; see also People v. Long (1985) 164 Cal.App.3d 820, 828 [imposition of a restitution fine under former Gov. Code § 13967 without ability to pay hearing does not violate constitutional rights].)
2. The excessive fines clause was not violated.
We likewise reject appellant's excessive fines challenge. We must give deference to the Legislature's determination regarding the appropriate punishment. (United States v. Bajakajian (1998) 524 U.S. 321, 336 (Bajakajian).) Appellant was convicted of attempted murder of a peace officer, along with numerous other violent crimes. The sentencing court determined this was an egregious case, and appellant represented an extreme danger to the community. When the relevant factors are examined, it is abundantly clear the $10,000 maximum restitution fine imposed against appellant was not "grossly disproportional" when compared to his crimes. (Bajakajian, at p. 334; see also Lowery, supra, 43 Cal.App.5th at p. 1058; Aviles, supra, 39 Cal.App.5th at p. 1072.) As such, we reject appellant's assertions the excessive fines clause of the Eighth Amendment was violated.
"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." (Bajakajian, supra, 524 U.S. at p. 334.) The following factors are examined to determine if a fine is constitutionally excessive: (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. (Aviles, supra, 39 Cal.App.5th at p. 1070.) 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.) The United States Supreme Court recently held the Excessive Fines Clause is incorporated to the States through the Due Process Clause of the Fourteenth Amendment. (Timbs v. Indiana (2019) ___U.S.___ [139 S.Ct. 682, 687].)
D. Any presumed constitutional violation is harmless.
Unlike the Dueñas defendant who was placed on probation and subjected to a recurring cycle of debt, appellant was sentenced to a lengthy prison term. He was approximately 25 years old at the time of this sentencing. Nothing in this record suggests he might be unable to work, or he might be ineligible for prison work assignments. As such, we can infer he will have the opportunity to earn prison wages and he can start paying these financial obligations. (See Lowery, supra, 43 Cal.App.5th at p. 1060; Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's prison wages].) Although it may take him time to pay his financial obligations, he can make payments from either prison wages or monetary gifts from family and friends. (Lowery, supra, 43 Cal.App.5th at pp. 1060-1061; Aviles, supra, 39 Cal.App.5th at p. 1077.) Thus, any presumed constitutional error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Therefore, appellant's constitutional challenges are without merit and remand is unnecessary. (See Lowery, supra, 43 Cal.App.5th at p. 1061.)
The probation report lists appellant as homeless. According to this report, appellant graduated from high school in 2011. He attended a semester of junior college later that year, and another semester of junior college in 2012. He denied being in the care of any physician or taking any prescription medication. He indicated he was in good health.
DISPOSITION
The judgment is modified as follows. The conviction in count 1 is vacated. The conviction in count 6 is conditionally reduced to a misdemeanor. This matter is remanded for resentencing and for further proceedings consistent with this opinion. On remand, the People may elect to accept the misdemeanor conviction in count 6 and appellant shall be resentenced accordingly. In the alternative, the People may retry appellant in count 6 and seek a felony conviction. In any event, when appellant is resentenced, the court shall stay the sentences in counts 3 and 7 pursuant to Penal Code section 654. Following resentencing, the court shall forward amended abstracts of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
LEVY, J. I CONCUR: HILL, P.J. SMITH, J., Concurring.
I concur in the judgment and agree that appellant had the duty to object to the fine under Penal Code section 1202.4, subdivision (c), based on his inability to pay in the trial court. With that in mind, I would agree that appellant has forfeited any challenge under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) as to the fines, fees and assessments imposed by the trial court. (Pen. Code, §§ 1202.4, subd. (b)(1), 1465.8; Gov. Code, § 70373.) However, I respectfully disagree with the majority and do not join in their reasoning as to appellant's claim on the merits. Forfeiture aside, I would allow him the opportunity to raise the issue in the trial court upon remand.
All further statutory references are to the Penal Code unless otherwise specified.
SMITH, J.