Opinion
D074853
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. DENNIS CARL ROBINSON, III, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275803) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Dennis Carl Robinson, III guilty of a single count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). In a separate bench trial, the court made a true finding that Robinson incurred two probation denial priors. (§ 1203, subd. (e)(4).) The trial court sentenced Robinson to prison for a term of three years, and imposed various fines and fees.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Robinson raises three issue on appeal. The first issue involves Robinson's mental competence to stand trial. Although the trial court found Robinson to be mentally competent at a hearing approximately two months prior to trial, Robinson contends that due to his conduct immediately prior to trial, his mental competency was called into doubt, requiring the trial court to once again suspend proceedings for a mental competency evaluation. The second issue arises from Robinson's refusal to come to the courtroom at any point during trial or sentencing. Specifically, Robinson contends that his constitutional and statutory rights were violated because the trial and sentencing proceedings were held outside of his presence. The third issue arises from the trial court's imposition of various fines and fees at sentencing. Robinson contends that his rights to due process and equal protection were violated because the trial court did not consider his ability to pay before imposing the fines and fees.
We conclude that Robinson's arguments lack merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of January 11, 2018, Robinson approached a man in his mid-sixties, Jose, at a bus stop. Without any basis to do so, Robinson angrily told Jose something such as, "Don't be fucking talking about me in my face." Jose responded that he wasn't talking about Robinson and didn't want to fight. According to Jose, Robinson then spat on him, in response to which Jose kicked Robinson in the leg. Robinson proceeded to punch Jose multiple times, including in the face. Jose fell to the ground, bleeding from his face, and Robinson left the scene. Jose was taken by ambulance to the hospital, where he was treated for a fractured nose and other injuries to his face. Robinson was later identified by police as a result of surveillance video from the bus stop.
To protect his privacy, we refer to Jose by his first name, and we intend no disrespect by doing so.
On March 15, 2018, an information charged Robinson with a single count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), with the further allegation that Robinson personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). It was also alleged that Robinson incurred two probation denial priors. (§ 1203, subd. (e)(4).)
On April 26, 2018, at a scheduled readiness conference, Robinson was not present because he refused to come to court, and defense counsel asked to suspend proceedings pursuant to section 1368. The trial court suspended proceedings and ordered a mental competency examination of Robinson.
Section 1368, subdivision (b) provides that "[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing . . . ."
Robinson was interviewed by psychiatrist Matthew Carroll, M.D., on June 7, 2018. During the interview, Robinson was initially cooperative and made clear that he wanted an evaluation that would send him to a mental hospital. However, as the interview progressed, Robinson became agitated and less cooperative. Based on the interview and a review of relevant records, which included district attorney and city attorney files, jail psychiatric records, and county mental health records, Dr. Carroll issued a report. Dr. Carroll's report set forth the following diagnostic impression: "1. Malingering. [¶] 2. Personality disorder, not otherwise specified with antisocial, histrionic and borderline[] personality traits. [¶] 3. History of polysubstance abuse." With respect to the issue of mental competency to stand trial Dr. Carroll's report stated, "It is my opinion with reasonable medical certainty, that the defendant's uncooperativeness is due to a combination of malingering and a severe personality disorder. [¶] In my opinion, the defendant does have the ability to understand the nature of the proceedings against him and does have the ability to assist his attorney in a rational manner in his own defense if he chooses to. [¶] The defendant has shown in his police reports, that if he chooses to, he has the ability to speak in a logical, clear, and coherent manner. He has shown this in his psychiatric records. [¶] The defendant is an extremely manipulative man, who desires to be placed in a psychiatric setting to avoid facing his charges. In my opinion, his behavior is willful and intentional. Individuals with personality disorders can be very difficult to work with, but that does not mean that he is not competent to stand trial."
At a hearing held on June 29, 2018, the trial court relied on Dr. Carroll's report to find that Robinson was mentally competent to stand trial, and it reinstated the proceedings. Robinson was not present at the mental competency hearing, as he had become combative about getting on the bus to be transported from jail to the courthouse and, according to the bailiff, "needed to be succumbed."
On the day that trial was scheduled to begin, September 4, 2018, the parties appeared before the trial court to discuss pretrial matters, including motions in limine and voir dire procedures. Robinson was present because he had been forcibly extracted from his jail cell to come to court. Throughout the hearing, Robinson made many uninvited comments, some of which were rambling and bizarre, including several of a sexual nature directed toward the trial court judge, but many of which were focused on issues concerning the proceedings, his representation and his treatment in jail. The trial court repeatedly warned Robinson that he must stop making uninvited comments, but Robinson persisted in doing so.
Because of Robinson's history of refusing to be brought to court from jail, the trial court made clear to Robinson several times during the hearing that trial would commence the next morning with the selection of a jury, followed by the examination of witnesses, regardless of whether Robinson chose to be present. "We start trial tomorrow morning, sir. You'll be dressed out in street clothes. And we're going to pick a jury. There's going to be a lot of people in the jury box and we're going to get started with the case and your lawyer is going to help pick the jury and then we'll get started with the witnesses and we'll get going. If tomorrow morning, when they go get you, if you refuse to come out of your cell, we're going to proceed without you. I'm going to assume that you have decided you don't want to be present. And I will say it one last time. That is not what we want. We want you to help your attorney with your defense, but we are not going to physically have to extract you every day for trial. If you refuse to come out, we'll proceed with the case without you." The trial court further stated, "I think we've discussed the ground rules here. We know where we're at in terms of tomorrow morning and what is going to happen, whether you'll come out of your cell voluntarily. If you are not, then we'll proceed without you, sir. I'm just putting you on notice about that."
The next morning, September 5, 2018, jury selection began, but Robinson was not present. The bailiff reported that Robinson had been forcibly extracted from his cell and transported to court, but Robinson was refusing to come upstairs to the courtroom. After hearing from counsel, the trial court ruled that it would proceed without Robinson being present, and it made a finding that Robinson had voluntarily absented himself from trial. In so doing, the trial court rejected the prosecutor's suggestion that Robinson should be forced to come to the courtroom, at least during part of the trial, so that trial witnesses would have a chance to identify Robinson in court as the perpetrator of the assault. The trial court observed that "dragging him in here in leg chains as a recalcitrant defendant, a disruptive defendant and probably having him scream out, is certainly not going to help his case in front of the jury" and that there were other ways that the People could provide evidence identifying Robinson as the assailant.
A woman who witnessed the assault positively identified Robinson as the assailant at the preliminary hearing. At trial, the woman confirmed that she had made an in-person identification of Robinson at the preliminary hearing, and the court took judicial notice that she had done so. Although Jose was not able to identify Robinson as the assailant during the preliminary hearing or in a photographic line up, at trial he was shown a video recording of Robinson taken two days before the assault, which Jose testified could depict the person who assaulted him.
In the course of discussing whether Robinson had voluntarily absented himself from trial, the court and the parties discussed the issue of Robinson's mental competence. The prosecutor first raised the issue by commenting, "I'm not sure how effective and helpful he can be to his counsel in his defense in this case." The court responded, "Well, I have questions regarding his competency. No question. How would I not with what happened here yesterday, folks? But the man just went through a 1368 and—wasn't that a couple months ago?" The court stated, "What are we going to do? Every month do another 1368 until somebody, you know—has his mental status changed dramatically since the end of June, [defense counsel]?" Defense counsel replied, "No, your honor." She then elaborated, "Let me just put on the record also that I originally got this case shortly after he was arrested, so the beginning of March of this year. Just for the record, Mr. Robinson's attitude, his personality, his ability to assist me and everything that I see currently in Mr. Robinson has been the same since my initial contact with him through this case." When the court inquired whether Robinson had "really no ability to help you?" defense counsel explained, "Yes, Your Honor. It is not helpful to me in the way in which he acts; however, I know there's substantial case law that says when an individual is found to be malingering, that it is considered their choice not to assist and therefore that does not qualify as not assisting." After making its finding that Robinson had voluntarily absented himself, the trial court then proceeded with the first day of trial without Robinson in the courtroom.
The mental competency hearing was held on June 29, 2018, which was 68 days prior to the beginning of trial on September 5, 2018.
On the second day of trial, the bailiff reported that Robinson had refused to leave the jail to come to court. The trial therefore continued without Robinson's presence on the second day, and the parties concluded their presentation of evidence, and the jury began deliberations. Defense counsel reported to the court that she had spent 45 minutes to an hour speaking with Robinson the prior evening, during which she and Robinson discussed the case and whether Robinson wanted to testify. Although defense counsel never received a "straight answer" from Robinson about whether he wanted to testify, she left him with instructions that if he wanted to testify, he would have to come to court to do so.
Before recessing for the day, defense counsel stated that she would speak with Robinson that evening about whether he wanted either a bench trial or jury trial on the allegations that he suffered two probation denial priors, or whether he wanted to admit the priors. That evening, defense counsel sent an email to the court, as instructed, which stated, "We will not be requesting a jury trial for the alleged priors. It appears he does not want to admit, but a brief Bench Trial with Judicial Notice will be sufficient." Defense counsel confirmed on the record in court the next day that Robinson waived his right to jury trial on the priors.
On the third day of trial, Robinson once again refused to leave the jail to come to court. The jury returned a verdict, finding Robinson guilty of assault by means likely to produce great bodily injury. (§ 245, subd. (a)(4).) However, the jury was not able to reach a verdict on the two allegations that Robinson personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and after declaring a mistrial as to those special allegations, the trial court dismissed them. The trial court then held a bench trial on the priors, at which it made a true finding that Robinson had incurred the probation denial priors. (§ 1203, subd. (e)(4).)
On the day of sentencing, October 24, 2018, Robinson again refused to come to court, as the bailiff stated on the record. Defense counsel explained during the sentencing hearing that she had gone over the contents of the probation report with Robinson, who told her that he was willing to comply with the conditions of probation. The trial court stated that it did not believe probation was a viable alternative because Robinson was so noncompliant, observing that "it's pretty much a joke to consider Mr. Robinson complying with probation conditions when we can't even get him to come to court." The trial court sentenced Robinson to a mid-range prison term of three years, and imposed certain fines and fees.
II.
DISCUSSION
A. The Trial Court Did Not Violate Robinson's Right to Due Process by Failing to Suspend the Proceedings for a Second Time Immediately Before Trial
We first consider Robinson's contention that the trial court violated his right to due process because it did not suspend proceedings pursuant to section 1368 and order a mental competency evaluation for a second time "[i]n light of the accumulating evidence suggesting incompetence, as trial approached and as the proceedings continued in Mr. Robinson's absence."
1. Applicable Legal Standards
" ' "Both the due process clause of the Fourteenth Amendment . . . and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations] A defendant is incompetent to stand trial if he or she lacks a ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—[or lacks] . . . a rational as well as a factual understanding of the proceedings against him." ' " ' " (People v. Mai (2013) 57 Cal.4th 986, 1032 (Mai).) "Under both the federal Constitution and state law, the trial court must suspend criminal proceedings and conduct a competency hearing if presented with substantial evidence that the defendant is incompetent." (Mai, at p. 1032.) "In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial." (People v. Ramos (2004) 34 Cal.4th 494, 507.)
Similarly, as defined by statute, a defendant is mentally incompetent "if, as a result of a mental health disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).)
As relevant here, "[i]f, after a competency hearing, the defendant is found competent to stand trial, a trial court may rely on that finding unless the court ' "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding.' " (People v. Rodas (2018) 6 Cal.5th 219, 231 (Rodas).) " '[A] trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.' " (People v. Mendoza (2016) 62 Cal.4th 856, 885 (Mendoza).) "[U]pon the presentation of substantial evidence showing a substantial change of circumstances or new evidence giving rise to a serious doubt about the validity of the original competency finding, regardless of the presence of conflicting evidence, the trial court must hold a subsequent competency hearing. This substantial evidence standard of proof is the same standard applied by the trial court in determining whether an original competency hearing should be held." (People v. Kaplan (2007) 149 Cal.App.4th 372, 376.)
"[W]hen . . . a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant's mental state." (People v. Jones (1991) 53 Cal.3d 1115, 1153; see also Mendoza, supra, 62 Cal.4th at p. 890 [noting that "the trial court was in a position to determine from its own observations ever since the preliminary examination, including presiding over the competency proceedings, that the proffered new evidence of defendant's incompetence during trial, including his weeping, irrationality, and the reported lack of engagement in his own defense, were not indicators of a change but were consistent with behaviors and the evidence of incompetence that had been considered at the competency trial"].) "[T]he duty to suspend is not triggered by information that substantially duplicates evidence already considered at an earlier, formal inquiry into the defendant's competence; when faced with evidence of relatively minor changes in the defendant's mental state, the court may rely on a prior competency finding rather than convening a new hearing to cover largely the same ground." (Rodas, supra, 6 Cal.5th at pp. 234-235.) When assessing whether a second competency hearing is required, "[m]ore is required than just bizarre actions or statements by the defendant to raise a doubt of competency." (People v. Marshall (1997) 15 Cal.4th 1, 33.)
When the trial court is presented with substantial evidence of incompetence, it has no discretion to exercise, and it must, as a matter of law, initiate proceedings to determine whether the defendant is currently competent to stand trial. (Mai, supra, 57 Cal.4th at p. 1033 [trial court has discretion to decide against a competency hearing only "absent a showing of 'incompetence' that is 'substantial' as a matter of law"]; People v. Welch (1999) 20 Cal.4th 701, 738 ["once the accused has come forward with substantial evidence of incompetence to stand trial" the trial judge "has no discretion to exercise"].)
"On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial." (People v. Mickel (2016) 2 Cal.5th 181, 195.) Therefore, the question before us is whether there was any new evidence or change of circumstance presented to the trial court constituting substantial evidence of Robinson's incompetence to stand trial. If such evidence exists, we must conclude that the trial court erred in refusing to initiate proceedings to determine Robinson's competence.
2. No New Substantial Evidence of Robinson's Incompetence to Stand Trial Was Presented After the First Mental Competency Evaluation
To establish a change of circumstance showing substantial evidence of his incompetence to stand trial, Robinson points to (1) his conduct during the September 4, 2018 hearing and his subsequent refusal to come to court during the rest of trial and sentencing proceedings; (2) comments by defense counsel on September 5, 2018, that Robinson was "not helpful to me in the way in which he acts;" and (3) several comments by the trial court observing that Robinson obviously suffers from "mental health issues."
a. Robinson's Behavior at the September 4, 2018 Hearing and Refusal to Come to Court
Turning first to the September 4, 2018 hearing, Robinson points out that during the hearing he "continuously interrupt[ed] the court with non-sensical commentary" and "fail[ed] to acknowledge the court's warning that the trial will be conducted in his absence." However, based on our review of the hearing transcript, we find no substantial evidence suggesting that after his mental competency evaluation with Dr. Carroll on June 7, 2018, Robinson's mental state or behavior had so significantly changed that he could no longer consult with his lawyer with a reasonable degree of rational understanding or lacked a rational and factual understanding of the proceedings against him. (Mai, supra, 57 Cal.4th at p. 1032.)
Without a doubt, Robinson was disruptive at the September 4, 2018 hearing, as he continually interrupted the proceedings to interject his own thoughts and concerns, and even when asked a direct question such as whether he understood that the trial would proceed without him if he did not come to court, he chose not to respond and instead continued commenting on other issues that he wanted to discuss. Based on Robinson's statements, his main concerns apparently were: (1) having the same trial court judge for his other pending cases; (2) having the ability to meet with defense counsel every day; and (3) getting certain amenities in jail, such as laundry and a specific breakfast. Further, some of Robinson's statements were bizarre non-sequiturs (such as "[i]t's illuminati and you're a hundred million dollar judge"), or were inappropriate, including sexual comments directed at the trial court judge and professions of love toward defense counsel. However, Robinson's comments did not suggest that he was unable to understand what was being said to him or understand the nature of the proceedings. Indeed, much of what Robinson said was directed at issues connected to the proceedings. We note also that based on Dr. Carroll's description of his interview with Robinson, the behavior that Robinson engaged in during the September 4, 2018 hearing did not differ in any significant respect from how Robinson acted during the interview. Specifically, as Dr. Carroll described the interview, Robinson made several inappropriate comments during the interview, including stating " 'you did have sex with my attorney.' 'She is not so hot.' " However, as during the September 4, 2018 hearing, Robinson appears to have been generally able to understand and participate in the conversation with Dr. Carroll despite making some bizarre statements.
Although Robinson also cites his repeated refusal to come to court as evidence of his mental incompetency, the record shows that Robinson engaged in that sort of behavior prior to Dr. Carroll's evaluation of him, and indeed had refused to come to court on the day that the trial court originally suspended proceedings to evaluate his mental competency on April 26, 2018. Accordingly, Robinson's refusal to attend the trial proceedings does not constitute substantial evidence of a significant change in Robinson's mental state since he was found to be mentally competent to stand trial.
b. Counsel's Statements About Robinson's Inability to Assist
Next we consider Robinson's contention that the proceedings should have been suspended because "[b]efore trial even began, both defense counsel and the prosecution stated for the record that Mr. Robinson was unable to assist in his defense."
The prosecutor observed on September 5, 2018, that Robinson may not be able to assist his counsel "when he's acting like that and he can't be in court." However, the prosecutor's statement is not substantial evidence of Robinson's mental incompetence because other than what the prosecutor observed in the courtroom, he had no other information regarding Robinson's ability to assist in his own defense.
Robinson's argument fails because it ignores Dr. Carroll's conclusion that Robinson had the ability to assist his counsel, but that he was choosing not to do so, and neither the prosecutor nor defense counsel disputed Dr. Carroll's assessment based on their subsequent experience with Robinson. As Dr. Carroll concluded in his report, Robinson "does have the ability to assist his attorney in a rational manner in his own defense if he chooses to." Dr. Carroll diagnosed Robinson with a personality disorder and malingering, and explained that "[i]ndividuals with personality disorders can be very difficult to work with, but that does not mean that he is not competent to stand trial." Consistent with Dr. Carroll's evaluation, defense counsel did not ascribe Robinson's inability to assist her to any mental incompetency and instead cited Dr. Carroll's diagnosis of malingering. In responding to the trial court's question about whether Robinson had "really no ability to help you, in your view," defense counsel clarified that Robinson had not acted in a way that was helpful to her. Specifically, defense counsel responded to the trial court by stating, "Yes, Your Honor. It is not helpful to me in the way in which he acts; however, I know there's substantial case law that says when an individual is found to be malingering, that it is considered their choice not to assist and therefore that does not qualify as not assisting." Defense counsel did not take issue with the continued applicability of Dr. Carroll's conclusion that Robinson was malingering, and observed that "Mr. Robinson's attitude, his personality, his ability to assist me and everything that I see currently in Mr. Robinson has been the same since my initial contact with him through this case."
c. The Trial Court's Statements About Robinson's Mental Health Issues
Finally, we address Robinson's reliance on certain comments by the trial court, which he contends show that the trial court had a doubt as to his mental competency. First, on September 5, 2018, the trial court stated, "I have questions regarding his competency. No question. How would I not with what happened here yesterday, folks?" Second, on the third day of trial, in the course of discussing whether to dismiss the great bodily injury allegations after declaring a mistrial on them, the trial court observed, "We all know that there are some very severe mental health issues that are very apparent every time you just see Mr. Robinson." The trial court also stated, "Like I said, all of us have had extreme issues dealing with Mr. Robinson, and I really think—I know he had a 1368 and I know that he was found to be competent, but there are obviously some mental—serious mental health issues going on when you have a completely unprovoked attack like this on the open street where he's accusing somebody of talking bad about him or something. So is he delusional? Is he paranoid? What is going on with him? Obviously something was because everybody there, the two witnesses—the victim and [the witness]—said it was completely unprovoked. There are major mental health issues going on here." Third, at sentencing, in the course of considering whether Robinson could be expected to be compliant with probation conditions, the trial court observed, "We all know there are some severe mental health issues going on here." The trial court also stated, "This is a young man out of control, and I really worry. He needs help. He needs attention, and, unfortunately, the criminal justice system is not, in many cases, the proper mechanism for dealing with someone with such severe mental illness."
Significantly, although the trial court believed that Robinson suffered from unspecified mental health issues, none of the trial court's comments indicate that it had formed the opinion that, based on Robinson's behavior, Robinson was mentally incompetent to stand trial. To be sure, both during Robinson's court appearances and during the assault on Jose, Robinson demonstrated behavior that a reasonable person would conclude is indicative of some kind of underlying mental health issue. However, not all mental health issues cause a defendant to be unable to rationally consult with his lawyer or to understand the proceedings against him. Although the trial court stated on September 5, 2018 that it had "questions regarding [Robinson's] competency," such an "expression of preliminary concerns about competency does not require the commencement of competency proceedings." (People v. Price (1991) 1 Cal.4th 324, 396-397, italics added.) The trial court acted on its preliminary concerns about Robinson's mental competency by asking defense counsel whether Robinson's "mental status changed dramatically since the end of June," and also by inquiring whether defense counsel believed Robinson had "really no ability to help you." After learning from defense counsel that "Mr. Robinson's attitude, his personality, his ability to assist me and everything that I see currently in Mr. Robinson has been the same since my initial contact with him through this case," and after hearing defense ascribe Robinson's unhelpfulness to a diagnosis of malingering rather than mental incompetency, the trial court reasonably concluded that there was no substantial evidence showing a substantial change of circumstances or new evidence giving rise to a serious doubt about the validity of Dr. Carroll's original competency finding.
Accordingly, we conclude that the trial court did not err by failing to suspend proceedings immediately prior to trial to order a second evaluation of Robinson's mental competence. B. Robinson's Absence from the Proceedings Did Not Violate His Constitutional or Statutory Right to Be Present
We next consider Robinson's contention that his constitutional and statutory right to be present at trial was violated because the jury trial, the bench trial on the probation denial priors and the sentencing all took place in his absence.
"A criminal defendant, broadly stated, has a right to be personally present at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment; the due process clause of the Fourteenth Amendment itself; section 15 of article I of the California Constitution; and sections 977 and 1043 of the Penal Code." (People v. Waidla (2000) 22 Cal.4th 690, 741.) Further, section 1193 establishes a defendant's right to be present at the pronouncement of judgment.
Specifically, " '[t]he constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation], but [the Supreme Court] ha[s] recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.' . . . Our state Constitution guarantees that '[t]he defendant in a criminal cause has the right . . . to be personally present with counsel, and to be confronted with the witnesses against the defendant.' (Cal. Const., art. I, § 15.)." (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202, citation omitted (Gutierrez).) " "The state constitutional right to be present at trial is generally coextensive with the federal due process right.' " (People v. Butler (2009) 46 Cal.4th 847, 861.) "Sections 977 and 1043 implement the state constitutional protection. . . . Section 977, subdivision (b)(1), provides: 'In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. . . .' Section 1043, subdivision (a), states that '[e]xcept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.' " (Gutierrez, at p. 1202.) Section 1193, subdivision (a), provides that "[i]f the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence." (§ 1193, subd. (a).)
Although a defendant has a right to be present at trial and subsequent proceedings, "the right is not an absolute one. . . . It may be expressly or impliedly waived." (People v. Espinoza (2016) 1 Cal.5th 61, 72, citation omitted (Espinoza).) The constitutional right to be present " 'may be lost by consent or at times even by misconduct.' " (Gutierrez, supra, 29 Cal.4th at p. 1202.) " ' "If a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away." ' " (Espinoza, at pp. 73-74.) "No more [is] constitutionally required." (Id. at p. 74.) "Section 1043[, subd.] (b)(2) has adopted this . . . rule as state law." (Id. at p. 72.) Under that provision, a defendant's absence "in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in . . . [¶] . . . [¶] [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent." (§ 1043, subd. (b)(2), italics added).
Section 977, subdivision (b)(1) provides that, with certain exceptions, "in all cases in which a felony is charged, the accused shall be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . ." However, our Supreme Court has determined that "subdivision (b)(1)'s presence requirement does not preclude a defendant from being 'voluntarily absent' during the taking of evidence under section 1043, subdivision (b)(2)." (Gutierrez, supra, 29 Cal.4th at p. 1203, italics added.) "[W]hen a trial has commenced in a defendant's presence, section 1043 applies." (Ibid.) Therefore, in considering whether Robinson voluntarily absented himself and waived his statutory right to be present during trial, we focus on whether Robinson was voluntarily absent under section 1043, rather than whether he was required to be present under section 977.
Here, the trial court determined that Robinson was voluntarily absent from trial, and thus was not required to be present. " 'In determining whether a defendant is absent voluntarily, a court must look at the " 'totality of the facts." ' " (Espinoza, supra, 1 Cal.5th at p. 72.) "The role of an appellate court in reviewing a finding of voluntary absence is a limited one. Review is restricted to determining whether the finding is supported by substantial evidence." (Id. at p. 74.)
1. Substantial Evidence Supports the Trial Court's Finding That Robinson Voluntarily Absented Himself from Trial
Robinson contends that substantial evidence does not support the trial court's finding that he voluntarily absented himself from trial. According to Robinson, he "never entered into a knowing and intelligent in-court waiver of his right to be present at trial." (Italics added.) However, as our Supreme Court has explained, a trial court is not required to "personally confront a defendant to determine whether the defendant desires to be voluntarily absent from court proceedings." (Gutierrez, supra, 29 Cal.4th at p. 1205.) A court "may continue a trial in a custodial defendant's absence after the trial has commenced in the defendant's presence—without first obtaining the defendant's written or oral waiver of the right to presence—if other evidence indicates the defendant has chosen to be absent voluntarily. While a defendant's express waiver in front of the judge might be the surest way of ascertaining the defendant's choice, it is not the only way. A defendant's 'consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.' . . . In determining whether a custodial defendant who refuses to leave the lockup is 'voluntarily absent' (§ 1043, subd. (b)(2)), a trial court should take reasonable steps to ensure that being absent from trial is the defendant's choice." (Gutierrez, supra, 29 Cal.4th at p. 1206.) An in-person waiver is not required because "forcing a trial judge to leave the bench each time a defendant did not want to leave the lockup would greatly 'frustrat[e] the orderly processes' of court proceedings" and "would only serve to further a defendant's dilatory tactics." (Id. at p. 1205.) "Instead . . . a trial judge may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence." (Ibid.)
As we have explained, a defendant voluntarily waives the right to be present at trial if: (1) the defendant is aware of the trial; (2) the defendant is aware of his/her right and obligation to be present at the trial; and (3) the defendant had " 'no sound reason' " for not being present at trial. (Espinoza, supra, 1 Cal.5th at pp. 73-74.) Here, substantial evidence establishes each of these elements. Specifically, the record establishes Robinson was aware that jury selection and the examination of witnesses would begin the next day and that he had a right to be present at those proceedings, as the trial court extensively discussed those issues with him at the September 4, 2018 hearing. Moreover, as defense counsel reported to the trial court after Robinson chose to stay in jail for the first day of trial on September 5, 2018, she met with Robinson that evening and explained that he had a right to testify, which he could exercise by agreeing to come to court the next day. Nevertheless, Robinson again chose to be absent from trial on September 6, 2018. The record also reveals that Robinson had no sound reason for not being present at trial, such as an inability to get himself to the courthouse or being unaware of the proceedings. Robinson was in custody and, as the bailiff stated on the record each day, officers attempted to transport Robinson to the courtroom, but Robinson consistently refused to come to court. Under those circumstances, the trial court properly concluded that Robinson had voluntarily absented himself from trial.
2. Trial Commenced in Robinson's Presence
Robinson also argues that the provision in section 1043, subdivision (b)(2) allowing a trial to proceed when a defendant is voluntarily absent does not apply here because it is applicable only "after the trial has commenced in his presence." (§ 1043, subd. (b), italics added.) Robinson contends that "[a]t the earliest, the trial commenced at the point prospective jurors were assembled in the juror room," which was September 5, 2018, when he was not present, making section 1043, subdivision (b)(2) inapplicable.
We reject Robinson's argument based on People v. Ruiz (2001) 92 Cal.App.4th 162, which concluded that trial had commenced in the defendant's presence for the purpose of section 1043, subdivision (b), when the defendant appeared at a hearing the day before jury selection began when counsel and the court discussed pretrial logistical issues. Specifically, in Ruiz, the defendant was present in court when the parties addressed trial management issues with the trial court. (Id. at p. 164.) On the second day of proceedings, when jury selection commenced, defendant was absent from court, and he continued to be absent for the rest of the trial. (Id. at pp. 165, 166.) On appeal, the defendant argued that "trial 'commences' for purposes of section 1043 when jury selection begins, or later." (Id. at p. 166.) He accordingly contended that the voluntary-absence exception in section 1043, subdivision (b)(2) did not apply to his case because "his absence began before jury selection, which is before 'trial.' " (Ibid.) Ruiz rejected the argument and concluded that trial had commenced when the defendant was before the court at a hearing to discuss trial management issues immediately before jury selection. As Ruiz explained, "Nothing in the language of or policy behind section 1043 suggests that the defendant must wait to waive his personal presence until a time later than the moment after he appears before the court for trial. No legitimate objective is served by requiring the waiver of one's presence to occur only after the potential jurors have been sworn for voir dire, the jury is impaneled or the first witness is sworn. Indeed, delaying the allowance of a defendant's absence could lead to unnecessary hostility if the defendant tries to gain the desired absence by becoming 'disorderly, disruptive and disrespectful of the court' (§ 1043, subd. (b)(1)) or by threatening to become so." (Id. at pp. 168-169.)
Recently, in People v. Johnson (2018) 6 Cal.5th 541, 563, our Supreme Court addressed the trial-commencement requirement in section 1043, subdivision (b). The defendant argued that the voluntary absence exception was inapplicable because jury selection had not begun when he became absent from the proceedings. Johnson rejected this argument both on the facts and because it found that the purpose of the trial-commencement requirement in section 1043, subdivision (b) had been satisfied. On the facts, Johnson rejected the defendant's argument because jury selection had already commenced when an aborted jury-selection proceeding took place several weeks before defendant's absence. (Ibid.) However, as an alternative ground for its ruling, Johnson explained that "the evident purpose of section 1043's requirement that trial have commenced in the defendant's presence is to ensure that the defendant is aware of the right to be present and that the trial will continue in the defendant's absence." (Ibid.) Johnson concluded that "[t]he record shows that defendant was assuredly aware of these things." (Ibid.)
In the course of its discussion, our Supreme Court in Johnson described "dicta in People v. Concepcion (2008) 45 Cal.4th 77, 80, footnote 4, where we observed in passing that commencement of trial under section 1043 begins at least as early as jury selection." (Johnson, supra, 6 Cal.5th at p. 563, italics added.) Specifically, the footnote in Concepcion stated, "For the purposes of section 1043, a jury trial begins with jury selection. (People v. Granderson (1998) 67 Cal.App.4th 703, 709 . . . .) Defendant does not contend otherwise." (Concepcion, supra, 45 Cal.4th at p. 80, fn. 4.) As Johnson's rephrasing of Concepcion's dicta makes clear, the language used in the Concepcion footnote was inexact, and should have said that commencement of trial begins at least as early as jury selection, not with jury selection. Indeed, Granderson, which Concepcion cites in the footnote says just that, namely that "for the purpose of section 1043[, subd.] (b)(2), the Legislature intended the word 'trial' in the phrase 'after the trial has commenced in [the defendant's] presence' to include the critical stage of jury selection." (Granderson, supra, 67 Cal.App.4th at p. 709, italics added.) Thus, even though Concepcion might be read to imply otherwise, after Johnson it is clear that our Supreme Court does not follow the rule that trial commences for the purpose of section 1043, subdivision (b) only when jury selection commences.
We reach the same conclusion here. Based on the trial court's discussion with him on September 4, 2018, Robinson was assuredly aware of his right to be present and that the trial would continue in his absence. Therefore, even though jury selection did not begin until September 5, 2018, the purpose behind the trial-commencement requirement was satisfied by Robinson's appearance in court on September 4, 2018, when the parties and the court discussed motions in limine and jury selection procedures, and the trial court discussed with Robinson his right to be present at trial and that trial would proceed without him if he chose to stay away from court.
3. The Trial Court Did Not Err in Impliedly Finding that Robinson Waived His Right to a Jury Trial on the Probation Denial Priors
With respect to the bench trial on the probation denial priors, Robinson argues that without his presence in court, "the court's implied finding that Mr. Robinson knowingly and intelligently waived his right to a jury trial was also in error." Robinson argues, "Here, the court failed to ensure Mr. Robinson's waiver of his right to a jury trial on the priors was knowing and intelligent. Not only was he not personally present but defense counsel's email to the court failed to unequivocally demonstrate Mr. Robinson's understanding of his rights." In addition, Robinson argues that " '[w]ith respect to the particular fundamental constitutional right to a jury trial, moreover, our state Constitution explicitly requires the defendant's personal and express waiver in open court.' "
We understand Robinson to be making two separate arguments: (1) that an express waiver in open court was required for him to waive his right to a jury trial on the probation denial priors; and (2) regardless of whether he was personally present, his waiver was ineffectual because it was not knowing and intelligent. As we will explain, both arguments lack merit.
First, there is no merit to Robinson's claim that an express waiver in open court was required to effectuate a valid waiver of his right to a jury trial on his probation denial priors. "[T]he right to have a jury determine the truth of a prior conviction allegation 'is derived from statute,' not from the state or federal Constitution, and does not implicate any constitutional requirement of express and personal waiver." (People v. Cross (2015) 61 Cal.4th 164, 172; see also People v. French (2008) 43 Cal.4th 36, 46 ["The requirement of an express waiver applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute."]; People v. Vera (1997) 15 Cal.4th 269, 277, citation omitted ["Since there is no constitutional right to have the jury determine the truth of a prior conviction allegation . . . , it follows that the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate."].) Therefore, since only the statutory right to a jury trial was at issue, there is no requirement that Robinson have been personally present in court to make an effective waiver.
The statutory right to a jury trial on the fact of a prior conviction is set forth in sections 1025, subdivision (b), and 1168, both of which provide that a defendant may waive that right.
Second, to the extent that Robinson contends that the waiver of his statutory right to a jury trial on the probation denial priors was ineffectual because it was not shown to be knowing and intelligent, that claim is not cognizable on appeal. " 'Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior prison term allegations.' " (People v. Grimes (2016) 1 Cal.5th 698, 738.) Here, because no objection was made to the proceeding with a bench trial on the probation denial priors, Robinson may not raise this issue on appeal.
4. The Trial Court Properly Conducted the Sentencing Hearing Without Robinson's Presence
We also reject Robinson's contention that the trial court improperly proceeded with the sentencing hearing in his absence.
California law is clear that a defendant may waive his right to be present at sentencing, just as a defendant may waive his right to be present at other proceedings after trial has commenced. (See People v. Robertson (1989) 48 Cal.3d 18, 62 ["defendant could waive his right to be present at [the imposition of] sentence," citing § 1193]; In re Jimenez (1969) 269 Cal.App.2d 621, 623 ["Basic constitutional and statutory safeguards protect a defendant, requiring his presence at the time of rendition and the imposition of sentence," but "the right is waived if a defendant voluntarily absents himself after the trial has begun."].) Specifically, section 1193, subdivision (a), allows the trial court to pronounce judgement in a defendant's absence, among other reasons, if "after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence." (§ 1193, subd. (a).)
Here, just as had occurred during the entire course of trial, on the day of the sentencing hearing, the bailiff reported that Robinson was refusing to come to the courtroom. Based on the trial court's previous conversation with Robinson on September 4, 2018, about his right to be present in court, and based on defense counsel's report to the court that she had met with Robinson prior to the sentencing hearing to go over the issues in the probation report, the trial court could reasonably conclude that on the day of sentencing Robinson was " ' "aware of the processes taking place, of his right and of his obligation to be present, and . . . [had] no sound reason for remaining away." ' " (Espinoza, supra, 1 Cal.5th at pp. 73-74.) Because Robinson voluntarily absented himself and thus waived his right to be present at the sentencing hearing, the trial court was well within its discretion to conclude that "it will be in the interest of justice that judgment be pronounced in [Robinson's] absence." (§ 1193, subd. (a).) C. Robinson Has Forfeited His Challenge to the Trial Court's Imposition of Fines and Fees Without Considering Robinson's Ability to Pay
Finally, we consider Robinson's contention that this matter should be remanded for a hearing on Robinson's ability to pay various fines and fees imposed by the trial court. Specifically Robinson contends that he has a due process and equal protection right to have a hearing on his ability to pay the following fees and fines: (1) a $900 restitution fine (§ 1202.4, subd. (b)); (2) a $40 court operations assessment (§ 1465.8); (3) a $30 criminal conviction assessment fee (Gov. Code, § 70373); and (4) a $154 criminal justice administration fee (Gov. Code, § 29550).
Robinson's argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and the case law subsequently following it. In Dueñas the indigent defendant objected to the trial court's imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), a $150 restitution fine (§ 1202.4) along with attorney fees ordered in a prior case, and she asked that the trial court hold a hearing on her ability to pay before imposing them. (Dueñas, at p. 1162.) The court agreed to hold a hearing on the defendant's ability to pay the attorney fees, but not any of the fines and fees. (Ibid.) At the hearing, the court determined that the defendant lacked the ability to pay the previously-ordered attorney fees and waived them, but the court concluded that the $30 court facilities assessment and the $40 court operations assessment were both mandatory fees it was required to impose regardless of the defendant's inability to pay. Further, with respect to the $150 restitution fine, the court found that the defendant had not shown the "compelling and extraordinary reasons" required by statute (§ 1202.4, subd. (c)) to justify waiving that fine. (Id. at p. 1163.)
Section 1202.4, subdivision (c) states, "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . ."
On appeal, Dueñas held that the trial court should have considered the defendant's ability to pay before imposing the fines and fees. Dueñas stated, "We conclude that 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 Penal Code section 1465.8 and Government Code section 70373. We also hold that although Penal Code 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." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
As relevant to Robinson's equal protection challenge, Dueñas stated, "While we consider the issue one of due process because it concerns the fairness of relations between the criminal defendant and the state . . . we acknowledge that the case law in this area historically has drawn on both due process and equal protection principles." (Dueñas, supra, 30 Cal.App.5th at p. 1169, fn. 4, citation omitted.)
Robinson argues that, based on Dueñas, because the trial court imposed the fines and fees without determining that he had an ability to pay, he was denied his right to due process and equal protection. As a remedy, Robinson seeks a remand so that the trial court can consider his ability to pay.
We note that the Courts of Appeal have reached different conclusions regarding the substantive merits of the Dueñas opinion, and our Supreme Court has granted review of the issues addressed in Dueñas. (People v. Kopp (2019) 38 Cal.App.5th 47, 94, review granted Nov. 13, 2019, S257844.) As we will explain, we need not express an opinion on whether Dueñas was correctly decided because we agree with the People that Robinson has forfeited his ability to seek a hearing on his ability to pay.
For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320, 326, (review granted Nov. 26, 2019, S258946) and People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 disagreed with Dueñas, whereas the court in People v. Belloso (2019) 42 Cal.App.5th 647, 654-656 followed Dueñas (review granted Mar. 11, 2020, S259755).
The Supreme Court granted review of Kopp limited to the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp (Cal., Nov. 13, 2019, No. S257844) 2019 WL 5997020.)
Specifically, we find forfeiture based on the fact that Robinson had the ability to object to the restitution fee—even before Dueñas was decided—but failed to do so. Where a statutory basis to object based on inability to pay exists, but a defendant fails to assert such a claim, the claim is forfeited. For example, in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), this court held that a defendant who fails to object to a restitution fine above the statutory minimum forfeits any ability-to-pay argument. We reasoned that the statute governing imposition of restitution fines "expressly permitted such a challenge" even before Dueñas. (Ibid.) As Gutierrez explained, the Dueñas decision does not compel a different conclusion on the issue of forfeiture in such circumstances. (Ibid. ["[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine [above the statutory minimum] by failing to object."].) The same is true here, where Robinson had the statutory right to request that the trial court consider his ability to pay the restitution fee, but failed to do so. By failing to object to the restitution fee, or seek an ability to pay hearing prior to the court's imposition of the fee, Robinson forfeited his challenge on appeal.
Section 1202.4, subdivision (d) provides in relevant part: "In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay . . . . Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (Italics added.) --------
Further, because Robinson did not raise any issue concerning his ability to pay a $900 restitution fine, we conclude he has also forfeited his challenge to the much smaller court operations assessment, criminal conviction assessment, and criminal justice administration fee. If Robinson chose not to object to the $900 restitution fine based on an inability to pay, he would not have objected to the additional fees in a smaller amount. We therefore see no basis for excusing Robinson's failure to object to those fees. (Gutierrez, supra, 35 Cal.App.5th at p. 1033 [defendant's failure to challenge a restitution fine greater than minimum on grounds of inability to pay forfeited defendant's objection to fees on same grounds].)
Robinson also contends that if we find forfeiture on appeal, we should conclude his counsel provided ineffective assistance of counsel. To demonstrate that counsel provided ineffective assistance, Robinson must show that counsel's representation was deficient and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Counsel's representation was deficient if "there could be no rational tactical purpose for [their] omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) Robinson was prejudiced if there is a reasonable probability he would have received a more favorable result had counsel provided adequate representation. (Strickland, at p. 694.)
Robinson has not demonstrated that defense counsel lacked a rational tactical purpose for failing to object to the restitution fine. For one thing, it is not clear whether Robinson lacked the financial resources to pay the fines and fees, and defense counsel thus may not have believed she had a factual basis to argue that Robinson was unable to pay them. Specifically, because of Robinson's refusal to cooperate, the probation officer's report contains no information about Robinson's employment or educational history or other financial resources, and defense counsel gave no indication at the sentencing hearing that Robinson had given her any information about his ability to pay. Moreover, to the extent that defense counsel may have been contemplating whether to request a hearing on Robinson's ability to pay, she reasonably could have concluded that she would be unable to present any meaningful evidence at such a hearing because Robinson would very likely continue to refuse to come to the courtroom to be a witness.
Further, on the issue of prejudice, because the record contains no information about Robinson's financial resources, we are unable to assess whether Robinson would have been able to show an inability to pay the fine and fees. We therefore cannot conclude, on this record, that any prejudice resulted from defense counsel's failure to raise the issue of Robinson's inability to pay.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.