Opinion
G057393
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RYAN IRWIN TISCHER, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Nikhil Cooper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18NF2813) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed as modified; remanded with directions. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Ryan Irwin Tischer of domestic battery causing injury (Pen. Code, § 273.5, subd. (a)), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a)). The trial court found true allegations Tischer suffered prior convictions for domestic violence within the previous seven years (§ 273.5, subds. (a) & (f)(1)), and had served a prior prison term based on one of those convictions (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise indicated.
The court sentenced Tischer to six years in prison: five years for the battery conviction and a consecutive one-year term for the prison prior. The court imposed a four-year term on the aggravated assault charge stayed under section 654; a six-month concurrent sentence was imposed for the misdemeanor charge.
The court imposed a mandatory state restitution fine of $300 (§ 1202.4), and imposed, but stayed, a $300 parole revocation restitution fine (§ 1202.45). For each felony conviction, the court imposed two statutorily mandated fee assessments: a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). Tischer made an indigency objection regarding the court fees based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which the court rejected. He did not contest the restitution fine.
On appeal Tischer raises four claims: (1) his statements to police should have been suppressed because he was improperly subjected to custodial interrogation after he had invoked his right to remain silent pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the imposition of the restitution fine and fee assessments violated due process because "the record does not present an evidentiary basis for the [trial] court's finding of a future financial ability to pay the fines and fees ordered in this case"; (3) the imposition of fee assessments for both felony convictions was error since sentencing on the second conviction was stayed under section 654; and (4) he is entitled to one additional day of custody credit and one additional day of conduct credit. We reject Tischer's first three claims. The Attorney General agrees with his fourth claim, as do we; Tischer is entitled to two additional days of custody credits.
We received supplemental briefing on the effect of the October 2019 amendment to section 667.5, subdivision (b), effective January 1, 2020, which eliminated this enhancement for most prior prison convictions. (See Sen. Bill No. 136 (Stats. 2019, ch. 590) (SB 136).) The amended statute retroactively applies to Tischer so the one-year term for his prior prison term enhancement must be stricken. We therefore strike Tischer's one-year section 667.5, subdivision (b), enhancement, and remand the matter to the trial court with directions to recalculate Tischer's custody credits and prepare an amended abstract of judgment. In all other respects the judgment is affirmed.
FACTS
On October 6, 2018, an assistant manager at an Anaheim storage facility was cleaning one of the storage units when he saw a woman and a man he later identified as Tischer approach the facility entrance and enter a gate code. He recalled the man was wearing a black cowboy hat. The manager recognized the woman as Christine L. because she was a regular at the facility. He later identified Christine L. in photographs at trial.
Later that day another tenant called the manager and told him he saw a man hitting a woman near one of the storage units. The manager returned to his office and reviewed surveillance footage from cameras placed throughout the facility. He later provided this footage to police and two clips were played for the jury. The first, taken about 25 minutes before the second, showed a man wearing a black cowboy hat inside the storage facility premises. The second clip, taken from outside Tischer's storage unit, showed a man in a black cowboy hat punch a woman in the face, knocking her to the ground. At trial, the manager identified Tischer and Christine L. as the people depicted in the video footage.
Four days later, Christine L. approached a police officer at a soup kitchen in the City of Orange. She had a black eye, a cut over her eyebrow, and a scrape on her nose. She reported what occurred at the storage facility to the officer, and pointed out Tischer, who approached them wearing a cowboy hat. After a search revealed a meth pipe, the officer took Tischer into custody. At trial, the officer testified Tischer was the same man Christine L. identified at the soup kitchen. He also stated he confirmed Christine L.'s identity from a DMV database and verified she was the same woman in the photographs admitted as prosecution exhibits.
Christine L. did not testify at trial.
Anaheim police officer Frank Kim went to the Orange Police Department to transfer Tischer to Anaheim for further investigation of the storage facility incident. Kim's body-camera recorded his contact with Tischer and their ensuing conversations. A portion of that recording was later played for the jury. In it, Tischer acknowledged he had been in an intimate relationship with Christine L. for "about a month." He also admitted he rented the storage unit in Anaheim and went there with Christine L. every day, including "a couple of days ago." He told Kim he had been trying to "break up" with Christine L. Tischer did not testify at trial.
DISCUSSION
1. There Was No Miranda Violation
Tischer admitted he had an intimate relationship with Christine L. to Kim. Because she did not testify, this statement was the only evidence the two had shared such a relationship. This element distinguishes domestic violence battery with corporal injury from simple battery, and was essential to a conviction on that count.
Section 273.5, subdivision (a), provides: "Any person who willfully inflicts corporal injury . . . upon a victim described in subdivision (b) is guilty of a felony." Subdivision (b) requires the victim be "one or more of the following," including "someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243." (§ 273.5, subd. (b)(3).) Section 243, subdivision (f)(10), in turn defines a '"dating relationship"' as "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations."
Tischer contends any statements he made to Kim should have been suppressed because Kim ignored Tischer's invocation of his right to remain silent and questioned him in violation of Miranda. We are not persuaded.
A. Background
Kim arrived at the Orange police station to transport Tischer to Anaheim. After taking custody of Tischer from Orange police, Kim asked him his name and gave him the required Miranda warnings. Tischer admitted he understood his rights.
Tischer does not argue the adequacy of the Miranda advisement or that he did not understand his rights.
Before Kim could ask Tischer if he was willing to speak, Tischer said, "Don't ask me anything." Kim asked, "Don't ask anything?" and Tischer replied, "No." Kim stated, "Okay."
Tischer then said, "Just heard you [unintelligible] you're reading me my rights so you're gonna arrest me, so just arrest me. . . . [unintelligible]." Kim asked, "You don't wanna know what we're asking about?" Tischer replied, "Well, if you're gonna arrest me then it doesn't matter." Kim said, "No, that's okay, fine, alright man, I was trying to let you answer the question like, it is what it is man."
As Kim began his pre-transport search of Tischer, Tischer said, "And this, this woman [unintelligible]." Kim replied, "This woman?" Tischer responded, "Yeah." Kim said, "Hey man, you said you didn't wanna talk to me so don't talk to me, all right?" Tischer replied, "Right, you're right." Kim then said, "Right, I think you're a nice guy though," and Tischer responded, "Too nice you know."
Kim continued searching Tischer, telling him, "You are, you're a nice guy but you can't talk to me, we're not allowed to talk to each other, I can't ask you questions remember?" He told Tischer to separate his feet; Tischer said something unintelligible, to which Kim stated, "Shhhh!!! We're not allowed to talk, that's your rules, you said it."
Tischer said something unintelligible. Kim once again reminded him, "Shhhh!!! You're not allowed to talk to me, you, you said that, you set precedence here." To which—Tischer replied, "Okay, search me." Tischer then started to say something else, "It just, I don't know [unintelligible]."
Finally, Kim simply said, "Stop, stop, stop, you're not allowed to talk to me, we, we, you said that, unless you change your mind, are you changing your mind?" Tischer replied, "Yes." Kim asked, "Are you sure?" Tischer again said, "Yes." When Kim asked, "So you do wanna talk to me," Tischer answered, "Absolutely." Tischer then gave a full statement, which included his admission to an intimate relationship with Christine L.
Tischer moved to suppress his statements to Kim. After reviewing Kim's body-camera recording and a transcript, the trial court denied the motion. The court found Tischer had invoked. The court then found Tischer changed his mind and decided he wanted to talk. "And so I think the invocation was respected by the officer and I'm going to deny the motion."
B. Analysis
On review of a trial court's resolution of a Miranda-based claim, we "'accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.'" (People v. Hensley (2014) 59 Cal.4th 788, 809 (Hensley).)
"Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis v. Thompkins (2010) 560 U.S. 370, 384.) "'To determine whether a statement was voluntary or coerced, we examine the totality of the circumstances.'" (Hensley, supra, 59 Cal.4th at p. 812.)
Tischer contends that after he invoked his right to remain silent, Kim should have "scrupulously honor[ed]" his "asserted right to silence," and Kim's failure to do so "made what followed inadmissible." We disagree with Tischer's view of the facts. "'[N]ot all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.'" (Hensley, supra, 59 Cal.4th at pp. 810-811.)
The conversation between Tischer and Kim after Tischer's invocation did not constitute an interrogation. Instead, while Kim was searching Tischer, Kim observed the two of them were "nice guys." When Tischer tried to respond, Kim told him not to speak. Kim's comments cannot reasonably be construed as calling for an incriminating response. We therefore find these comments were not improper custodial interrogation.
Tischer argues Kim was deceptively using "what might be described as clever reverse psychology along with some buttering up of his arrestee." We disagree. Kim's repeated admonitions to Tischer to stop talking were efforts to preserve Tischer's invocation of his right to silence, not undermine it. Moreover, even if deceptive comments are made by the police, their use "does not necessarily render a statement involuntary. Deception does not undermine the voluntariness of a defendant's statements to the authorities unless the deception is '"'of a type reasonably likely to procure an untrue statement.'"' [Citations.] "'The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.'"" (People v. Williams (2010) 49 Cal.4th 405, 443.) Here there were no such deceptive efforts.
Tischer relies on People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), as support for his "softening-up" argument. We find the case distinguishable on its facts. In Honeycutt, following his arrest, the defendant was placed in the back seat of a patrol car; he was not advised of his Miranda rights. The transporting officer then tried to talk to the defendant, "who looked back silently at the officer. During the short ride to the police station, however, defendant volunteered that [the officer] knew him under a different name. At that point [the officer] recognized defendant whom he had known through police contacts for about 10 years. They did not converse again while en route to the police station." (Honeycutt, supra, 20 Cal.3d at p. 158.)
At the station, the officer "engaged defendant in a half-hour unrecorded discussion. [The officer] testified that they discussed unrelated past events and former acquaintances and, finally, the victim. [The officer] mentioned that the victim had been a suspect in a homicide case and was thought to have homosexual tendencies. Although he stated that he did not expect defendant to talk about the offense, [the officer] testified that 'It was my duty to continue the efforts to try to get him to talk. And I was successful in it.' In the course of their interview [the officer] 'could see that [defendant] was softening up.' [The officer] said that they stayed away from a discussion of the offense, but by the end of the half-hour defendant indicated that he would talk about the homicide." (Honeycutt, supra, 20 Cal.3d at p. 158.)
Honeycutt was not advised of his Miranda rights until three hours after his arrest and his pre-advisement conversations with the officer. Only then did he expressly waive his rights and make his confession. (Honeycutt, supra, 20 Cal.3d at p. 159.) Thus, in Honeycutt "the critical question [was] what effect failure to give a timely Miranda warning has on the voluntariness of a decision to waive which is induced prior to the Miranda admonitions." (Ibid.) The court found "[w]hen the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary. . . ." (Id. at p. 160, italics added.) The facts of this case are significantly different. Here, Tischer reinitiated conversation with Kim, despite Kim's repeated admonishments to remain silent, and well after he had been advised of his Miranda rights.
The continuing viability of this sweepingly general 1977 finding must be evaluated in light of subsequent United States Supreme Court decisions holding that involuntariness can only be found when the police conduct amounts to actual coercion. (See, e.g., Colorado v. Connelly (1986) 479 U.S. 157, 170 ["The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion"]; Colorado v. Spring (1987) 479 U.S. 564, 574 [absent evidence a defendant's will was '"overborne and his capacity for self-determination critically impaired"' because of coercive police conduct, a waiver is voluntary under Miranda].)
More importantly, this case lacks what our Supreme Court has "described as 'the two salient features of Honeycutt.' [Citation.] In Honeycutt, the interrogating officer had a long-standing acquaintance with the suspect and sought to ingratiate himself by engaging in a 'half-hour unrecorded discussion' of 'unrelated past events and former acquaintances' before turning to the topic at hand. [Citation.] The record in this case, which does not reveal any past relationship between [the officer] and defendant, also does not reveal any similarly improper efforts at 'ingratiating conversation' concerning unrelated topics or 'disparagement of the victim[s].'" (People v. Young (2019) 7 Cal.5th 905, 925.) So too here.
There is nothing in our record to suggest Kim had any prior relationship with Tischer; nor does it suggest Kim sought to ingratiate himself with Tischer by discussing "unrelated past events and former acquaintances." (Honeycutt, supra, 20 Cal.3d at p. 158.) There was no improper "softening-up" in this case, and the trial court did not err in denying Tischer's motion to suppress.
2. The Restitution Fine and Court Fee Assessments Were Properly Imposed
Tischer next contends the court erred in assessing the restitution fine and court fees, citing Dueñas, supra, 30 Cal.App.5th 1157. As noted, the trial court imposed a mandatory state restitution fine of $300. For each felony conviction the court also imposed two statutorily mandated fee assessments: a $40 court operations assessment, and a $30 court facilities assessment.
Tischer did not challenge the restitution fine below; he only challenged the court fees. Because he failed to raise the issue below, Tischer has forfeited an appellate challenge to the restitution fine. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [Dueñas challenge forfeited by failure to object to the fines and assessments at sentencing]; People v. Nelson (2011) 51 Cal.4th 198, 227 [ability to pay a maximum restitution fine is forfeited by failure to object].) Because Tischer forfeited his ability to contest the restitution fine by failing to object, we are limited to consideration of the $140 in court fee assessments.
As noted, Tischer did make an indigency objection to the court fees and he cited Dueñas in support. Trial counsel argued his client was homeless and noted he was at a soup kitchen at the time of his arrest. The court responded, "[T]here are wages that are paid to people in prison for work that they perform in prison." It added that Tischer's financial burden "could be around $500," but he "is going to be in custody and can earn prison wages, and I will order that . . . these fees be collected by the Department of Corrections." The court distinguished Dueñas on the basis it was a probation case, and that Ms. Dueñas was "not in a position where [she] could earn wages."
Indeed, the defendant's extreme poverty was the core of the Dueñas holding. (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
Tischer contends the imposition of the mandatory fees violated his federal and state due process rights because "the record does not present any evidentiary basis for the [trial] court's finding of a future financial ability to pay" them. We disagree. The trial court's findings regarding future prison wages constitute an "evidentiary basis" for finding a future ability to pay the fees. (Cf. People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [a restitution fine under section 1202.4 "may be based on the wages a defendant will earn in prison"].)
The record does not disclose Tischer suffers from any mental or physical infirmity that would prevent him from work. Thus, Tischer will likely be able to earn wages sufficient to pay his fee assessments during his five-year prison term. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139 [idea a defendant cannot afford to pay $370 while serving an eight-year prison sentence is "unsustainable"].)
Tischer criticizes "the impossibility of ever being able to fully justify California's current efforts to balance its state budgets by metaphorically squeezing that population of turnips that constitutes most of the people who are convicted of crimes" with mandatory fines and fees. We see the problem, and there may well be "a compelling argument that the imposition of [these statutory fines and fees] without consideration of a defendant's ability to pay is bad policy," but "that is an issue best left to the Legislature." (People v. Santos (2019) 38 Cal.App.5th 923, 940 (dis. opn. of Elia, J.).)
3. Separate Fee Assessments for Each Conviction Were Proper
In addition to domestic battery, Tischer was convicted of aggravated assault, for which the trial court imposed and stayed a four-year term under section 654. It also imposed a separate $40 court security fee and $30 criminal conviction assessment for that count. Tischer now claims the second set of fee assessments should also have been stayed under section 654.
Section 654, subdivision (a), provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.)
Tischer acknowledges that under People v. Castillo (2010) 182 Cal.App.4th 1410, a trial court is required to separately assess these fees for every count. (Id. at p. 1415, fn. 3.) Thus, unlike a restitution fine under section 1202.4, both fee assessments must be imposed for each conviction, even if the underlying sentence is stayed pursuant to section 654. (People v. Sencion (2012) 211 Cal.App.4th 480, 484.) Tischer argues Castillo and Sencion must be disregarded in light of Dueñas, maintaining the court fees assessed on the assault count are punitive in nature and should therefore have been imposed and stayed under section 654. We are not persuaded.
Section 654 is violated when a trial court "considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the court's calculation of the restitution fine . . . ." (People v. Le (2006) 136 Cal.App.4th 925, 934.)
The Attorney General argues Tischer forfeited this section 654 claim by failing to raise it below. Perhaps. (People v. Hester (2000) 22 Cal.4th 290, 295.) But Tischer's contention must be rejected on the merits.
Dueñas did not address section 654, so its application here is tenuous at best. Unlike a restitution fine imposed under section 1202.4, these court fees are non-punitive and are not imposed as punishment for a crime. To the extent Dueñas may be construed to hold otherwise, we disagree. (See People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8 court operations fee is not punishment]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373 court facilities fee is non-punitive].) Until such time as the Supreme Court revisits its Alford decision, we cannot consider court funding assessment fees as punishment. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial court properly imposed separate fee assessments for both the domestic battery conviction and the aggravated assault conviction.
4. Tischer Is Entitled to Additional Custody Credits
Finally, Tischer argues he is entitled to one additional day of custody credit and one additional day of conduct credit. The Attorney General agrees, and so do we. The trial court awarded 121 days of custody credits and another 121 days of conduct credits. However, Tischer was in custody 122 days between his arrest and his sentencing hearing, so he is entitled to two additional days. (People v. Bravo (1990) 219 Cal.App.3d 729, 735 [custody credits consist of the day of arrest and sentencing and all days in between].) The case is remanded and, the trial court is directed to correct Tischer's credits to reflect an additional two days.
5. The One-Year Prison Prior Enhancement Must Be Stricken
As noted, we invited and received supplemental briefing on the effect of the October 2019 amendment to section 667.5, subdivision (b), effective January 1, 2020, which eliminated this enhancement for almost all prison prior convictions. (See SB 136.) The parties agree SB 136 retroactively applies to convictions not yet final on appeal as of January 1, 2020. So do we.
It is undisputed the amendment to section 667.5, subdivision (b), lessens the punishment for a person such as Tischer, whose prior conviction for domestic battery no longer qualifies for the one-year prison prior enhancement. Instead, such persons are no longer subject to any enhanced punishment pursuant to the amended statute. It is also undisputed Tischer's case is not yet final.
As amended, only "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code" qualifies for the one-year enhancement. (§ 667.5, subd. (b).)
Amended section 667.5 retroactively applies to Tischer, and the one-year enhancement imposed for his prior prison commitment must be stricken. (See In re Estrada (1965) 63 Cal.2d 740.) Because the trial court imposed the maximum sentence, we may strike the enhancement rather than remand the matter for resentencing. (People v. Lopez (2019) 42 Cal.App.5th 337, 340.)
DISPOSITION
We modify Tischer's sentence by striking the section 667.5, subdivision (b), one-year prior prison commitment enhancement. The matter is remanded to the trial court to correct Tischer's custodial credits to reflect an additional two days. The trial court is directed to prepare an amended abstract of judgment reflecting the above modifications and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
GOETHALS, J. WE CONCUR: IKOLA, ACTING P. J. THOMPSON, J.