Opinion
F077515
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDRE UNDERWOOD, Defendant and Appellant.
Jacquelyn Larson, 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, Amanda D. Carey, Lewis A. Martinez and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DF012925A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David Wolf, Judge. Jacquelyn Larson, 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, Amanda D. Carey, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Andre Underwood was sentenced to an indeterminate life term in prison after being convicted of second degree murder and robbery. While serving that sentence, he was charged in the instant case with committing additional offenses in prison, with his two prior felony convictions for murder and robbery alleged as strike offenses. He moved to dismiss one of the prior strike convictions and argued both offenses resulted from a single act and could not constitute two separate strikes, based on People v. Vargas (2014) 59 Cal.4th 635 (Vargas). The trial court denied the motion.
Thereafter, defendant pleaded no contest to the currently charged offenses of felony possession of a weapon while in state prison (Pen. Code, § 4502, subd. (a)) and misdemeanor willful destruction of evidence (§ 135), and admitted both strikes. The trial court dismissed one strike pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and imposed a second-strike term of eight years.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the court abused its discretion when it denied his pre-plea motion to dismiss one of his prior strike convictions based on Vargas, and asserts his two prior convictions were based on a single act that resulted in the murder and robbery, and could not be charged as two separate strikes. Defendant further argues the court improperly ordered him to pay a restitution fine and other fees without determining whether he had the ability to pay those amounts in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS
In 1982, defendant was sentenced to 15 years to life plus one year for second degree murder with a firearm enhancement, and robbery. While defendant was serving that term, he was convicted and sentenced for committing additional offenses in state prison: possession of a weapon while confined in a state prison in 1984 and 1987 (§ 4502); possession of contraband in prison in 1990 (§ 4573.6); and for possessing a weapon in prison in 1997 and 1998.
On December 5, 2016, defendant was again found in possession of a weapon while in prison.
On June 23, 2017, a complaint was filed in the Superior Court of Kern County charging defendant with count 1, felony possession of a weapon, a sharp instrument, while confined in a penal institution (§ 4502, subd. (a)) and count 2, misdemeanor willful destruction of evidence (§ 135), with his prior convictions for murder and robbery alleged as two separate strikes. Defendant's prior convictions
Defendant's primary appellate argument is that his two prior convictions for murder and robbery should not have been alleged as separate strike offenses in this case. Defendant's argument is based on Vargas, which held that "two prior convictions arising out of a single act against a single victim" cannot constitute two separate strikes under the "Three Strikes" law. (Vargas, supra, 59 Cal.4th at p. 637.)
We will address these contentions in issue 1, but will first review the facts of his prior offenses. The parties agree the factual basis for defendant's two prior convictions are set forth in his appeal, People v. Underwood (1986) 181 Cal.App.3d 1223 (Underwood).
After defendant was convicted of murder and robbery, his convictions were initially affirmed in People v. Underwood (1985) 175 Cal.App.3d 745 , where the Second District, Division 5, rejected his contentions that the court failed to properly instruct the jury on aiding and abetting, define an accessory after the fact, improperly admitted evidence, and to investigate jury misconduct.
However, the California Supreme Court granted review on March 27, 1986, and remanded the matter back to the appellate court to reconsider the aiding and abetting issue in light of People v. Croy (1985) 41 Cal.3d 1.
Thereafter, the appellate court filed the second opinion, People v. Underwood, supra, 181 Cal.App.3d 1223, which again affirmed defendant's convictions.
"On the afternoon of January 29, 1981, Tyrone Powell (Powell) and Darryl Williams (Williams) walked to a local wash house to 'hang out.' Kelvin Mackey (Mackey) and Shelton Vance (Vance) joined them there and the group decided to '[make] some money' by '[robbing] somebody.' Powell first secured a shotgun shell from a boy named Phil and then the four made their way to a friend's house to get a 12-gauge shotgun. Powell loaded the gun and the group proceeded to a cafe called 'Parkers' to await a suitable victim. When none appeared, they retraced their steps through an alleyway and happened upon Joe Miyoshi (Miyoshi) as he was entering his van.
"Upon seeing Miyoshi, Vance said, '[let's] rob him.' When the others declined, Vance took the shotgun and confronted Miyoshi by himself. Vance pointed the gun at Miyoshi and Miyoshi threw some money out the window of his van. Miyoshi then tried to back up the van, but he hit a telephone pole and stopped. Miyoshi opened a door of the van, threw out more money and begged Vance not to shoot him.
"As Powell, and possibly Williams, joined Vance in picking up the victim's money, Mackey spotted defendant walking through the alley and called to him. Defendant approached Miyoshi's van and took the gun from Vance. As defendant held Miyoshi at bay, the others ran. Powell testified that he looked back and saw defendant shoot the victim, who died of a shotgun blast to the chest. Defendant then fled with the others to a friend's house, where the stolen money was divided.
"On the night of the murder, an officer directed to the scene of the shooting saw three male youths running. He arrived at the murder location about a minute later and then tried to find the three youths he had just seen. When he spotted them a few minutes later, they were standing between some houses and all three began to run. The officer then set up a perimeter, closed off the area, got a helicopter and started searching for the individuals.
"Defendant was caught by another officer and identified as one of the three youths. He was very short of breath and sweating quite profusely. Although defendant gave a false name, a police officer recognized him. He was taken into custody on an outstanding warrant for an unrelated juvenile offense and was placed with the California Youth Authority. At the time, he was only considered a witness to the Miyoshi robbery and murder.
"The following day, January 30, an investigating officer questioned defendant about the Miyoshi incident. Defendant maintained that although he happened on the robbery as it was concluding, he had nothing to do with its commission or the victim's subsequent slaying. He also stated that he saw who had done the killing. On March 4, defendant gave a second statement to the police and admitted that he had taken a share of the victim's money, but denied all other participation in the crime. Before making the second statement, police received a letter authored by defendant which warned one of the other youths charged with the robbery/murder not to involve him further in connection with Miyoshi's death and to blame the shooting on a third party. It was because of this letter that police decided to interview defendant a second time. They did so after giving defendant his Miranda rights upon the advice of a deputy district attorney.
"On May 29, 1981, defendant was arrested on the instant charges and transported to the county jail to await trial. He was tried as an adult with codefendant Darryl Williams...." (Underwood, supra, 181 Cal.App.3d 1223, 1228-1229, italics added.)
Defendant was convicted of second degree murder and robbery, and the jury found true a firearm enhancement (§ 12022, subd. (a)). Defendant was sentenced to 15 years to life for second degree murder, plus one year for the firearm enhancement; the court stayed the sentence for robbery pursuant to section 654. (Underwood, supra, 181 Cal.App.3d at p. 1227.)
Defendant's convictions were affirmed on appeal, where the court rejected his argument that the aiding and abetting instructions were erroneous. Underwood explained that the trial evidence was "undisputed that defendant happened upon a robbery in progress. When he arrived at the scene, force had already been applied to secure the victim's money and the victim had already surrendered most if not all of the money, with which the robbers eventually fled." (Underwood, supra, 181 Cal.App.3d at p. 1230.) "In a statement to police, defendant said that he took a share of the proceeds after he and the others reached a place of safety. He also reportedly told police that he saw Mackey picking up some of the victim's money off the ground, and that defendant indicated, 'I'm going to get some, I'm going to get some too.' " (Id. at p. 1230.) Underwood held the defendant "was not a passive bystander to the robbery which led directly to the victim's death." (Id. at p. 1236.) "The defendant's acts and statements establish that he helped perpetrate the robbery and meant to effect its successful conclusion. His culpability as a perpetrator was therefore shown as a matter of law and the jury instructions on aiding and abetting were therefore inapplicable and unnecessary on the charge of robbery." (Id. at p. 1235.)
DEFENDANT'S MOTION TO DISMISS
On March 6, 2018, in the current case, defendant filed a motion to dismiss one of his two prior strike convictions for second degree murder and robbery based on Vargas. Defendant argued the two convictions could not be treated as separate strikes because they were based on a single act committed against a single victim, and the term for robbery was stayed under section 654.
Defendant asserted based on the facts of his prior offenses, as set forth in Underwood, the murder of the victim was the act of force or fear required to commit the robbery, and the robbery was not complete because defendant had not reached a place of safety, so both offenses were based on a single act.
The People's opposition
The People's opposition argued defendant's two prior convictions did not result from a single act, and defendant participated in the robbery by holding the gun on the victim while the other perpetrators fled with the money, and then shot the victim after the money had already been taken, so that defendant was part of the robbery separate and apart from killing the victim.
The court's denial of the motion
The court denied defendant's motion to dismiss one of the prior strike convictions, and addressed the facts of the prior case as set forth in Underwood.
"The thing that strikes the Court as most significant is that while there is an argument that the robbery continues until there's a place of
safety, there is an absolute opportunity for the defendant to have basically stood down.
"Certainly in the eyes of the victim, these are extremely different crimes. In fact, in this case the victim was robbed twice, throwing money out twice, then getting out of the car. And when the victim had given all the money, he then gets shot and murdered.
"So I am going to deny the motion under Vargas. I do think these are separate acts ... and the facts of this case specifically in that a separate harm was—occurred by [sic] the victim. And I do believe they do merit separate punishment and separate strikes."
PLEA AND SENTENCE
On March 23, 2018, after his Vargas motion was denied, defendant pleaded no contest to counts 1 and 2, and admitted the two prior strike convictions, pursuant to the court's indicated sentence that it would dismiss one prior strike conviction pursuant to section 1385 and Romero, and impose a second-strike term of eight years. Thereafter, the court dismissed the prior robbery conviction over the People's objection and scheduled the sentencing hearing.
On April 23, 2018, the court imposed the upper term of eight years for count 1, felony possession of a weapon while in state prison (§ 4502, subd. (a)), and a concurrent term for count 2, misdemeanor willful destruction of evidence (§ 135). The court ordered defendant to serve this determinate term consecutive to the indeterminate term he was already serving.
Defendant had already been convicted of unrelated offenses committed in state prison. The court resentenced defendant for those convictions to consecutive subordinate terms.
As to the current convictions, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and suspended the parole revocation fine of $300 (§ 1202.45).
As to each count, the court imposed a court security fee of $40 (§ 1465.8) for a total of $80; and a $30 criminal conviction fee (Gov. Code, § 70373) for a total of $60.
On April 25, 2018, defendant filed a timely notice of appeal. On April 26, 2018, the court granted defendant's request for a certificate of probable cause.
DISCUSSION
I. Denial of defendant's pre-plea motion to dismiss
Defendant contends the court abused its discretion when it denied his pre-plea motion to dismiss one of his two prior strike convictions based on Vargas. Based on the facts of his prior offenses, as set out in Underwood, defendant asserts he committed a single act that resulted in both the robbery and murder of the victim, the sentence for the robbery was stayed under section 654, and he only should have been charged with having one prior strike offense.
Defendant acknowledges that after the trial court in this case denied his pre-plea Vargas motion, he then pleaded no contest to the charged offenses and admitted both strikes, the court dismissed one of the prior strike convictions, and he received a second-strike sentence, which is what he would have faced if his Vargas motion had been granted. Nevertheless, defendant asserts the court's failure to grant his pre-plea Vargas motion was prejudicial because the ruling forced him to enter the no contest pleas and admit the prior strike convictions. A. Benson and Vargas
Defendant's motion to dismiss was based on a principle that was initially addressed in People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8 (Benson). The defendant in Benson had two prior strike convictions for residential burglary and assault with intent to commit murder, based on an incident where he went to a neighbor's apartment to retrieve his keys, assaulted her, and repeatedly stabbed her. The trial court sentenced the defendant for burglary but stayed the term for assault pursuant to section 654. (Id. at pp. 27-28.) When the defendant committed another offense, he was convicted and sentenced to a third-strike term because his two prior convictions were alleged as separate strike offenses. On appeal from the third-strike conviction, Benson held each prior conviction qualified as a separate strike, even though one term had been stayed under section 654 in the prior case. (Id. at pp. 26-28.)
In reaching this conclusion, however, the court addressed the possible circumstances where prior convictions could not be alleged as multiple strike offenses:
"Because the proper exercise of a trial court's discretion under section 1385 necessarily relates to the circumstances of a particular defendant's current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (Benson, supra, 18 Cal.4th at p. 36, fn. 8, italics added.)
In Vargas, supra, 59 Cal.4th 635, the California Supreme Court addressed the issue raised by Benson. The defendant in Vargas had two prior strike convictions for carjacking and robbery; she committed the offenses based on the single act of forcibly taking the victim's car. When she was later convicted of another felony, the two prior offenses were found to be separate strikes and she was sentenced to a third-strike term. (Vargas, supra, 59 Cal.4th. at pp. 638, 645.)
Vargas reversed the third-strike sentence and held that "two prior convictions arising out of a single act against a single victim" cannot constitute two separate strikes under the Three Strikes law, and the trial court was required to dismiss one of the two prior felony strike convictions in these circumstances. (Vargas, supra, 59 Cal.4th at p. 637.) The "nature and circumstances of defendant's [prior] convictions show she committed just one criminal act, not two." (Id. at p. 646.) Vargas held that one of defendant's prior convictions should have been stricken because they "were not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act [of taking the victim's car by force], committed at the same time, against the same victim." (Id. at pp. 638, 640.) Under such circumstances, "treating them as separate strikes is inconsistent with the spirit" of the Three Strikes law, and a trial court abuses its discretion if it fails to dismiss one of the prior strike convictions. (Id. at p. 639.) In order to determine whether to dismiss one of the prior strikes, the trial court must consider "the nature and circumstances of the prior convictions and whether the defendant falls outside the spirit of the Three Strikes law." (Id. at p. 646.)
In reaching this holding, Vargas acknowledged it had previously found that multiple crimes may constitute multiple strikes when the prior offenses are tried together, or when multiple crimes occurred during a single course of conduct and punishment for one prior offense was stayed under section 654. (Vargas, supra, 59 Cal.4th at pp. 638-639.) In contrast, the prior convictions in Vargas involved "multiple criminal convictions stemming from the commission of a single act[]" and could not constitute two separate strikes, whereas "multiple criminal acts (albeit committed in a single course of conduct)," could be treated as two separate strikes. (Id. at p. 648.) B. Analysis
Defendant argues that as in Vargas, his prior convictions for murder and robbery were committed by a single act against a single victim, and the robbery sentence was stayed under section 654. Defendant asserts the trial court abused its discretion in this case when it failed to dismiss one of the prior offenses and denied his pre-plea Vargas motion.
Based on the facts of defendant's prior convictions, as set forth in Underwood, the court did not abuse its discretion when it denied defendant's pre-plea Vargas motion. Defendant's two prior convictions for murder and robbery were properly treated as two separate strikes because they arose out of a single course of conduct and not from a single act. As explained in Underwood, the victim had already surrendered his money to the other perpetrators when defendant took the gun, aimed it at the victim, and the other suspects escaped. Defendant then shot and killed the victim, and later met the other suspects to collect his share of the robbery proceeds.
Based on the nature and circumstances of defendant's conduct in the prior case, the murder and the robbery involved a single course of conduct, which is why the trial court stayed defendant's sentence for robbery at the time of the prior convictions. However, the two offenses did not arise out of a single act as defined by Vargas, and defendant was properly charged with two separate strike offenses in this case. II. The restitution fine and fees.
Defendant relies on Dueñas to argue the court violated his due process rights because it imposed a restitution fine and fees without determining whether he had the ability to pay these amounts. Defendant asserts the order imposing the fine and fees must be stayed and the matter remanded for the court to determine his ability to pay.
We decline to stay the court's orders for the restitution fine and fees. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.) Under that standard, the fine and fees imposed in this case are not grossly disproportionate to defendant's level of culpability, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.)
To the extent Dueñas applies to this case, the People argue defendant forfeited any challenge to his alleged inability to pay the fine and fees because he failed to object at the sentencing hearing. However, defendant did not forfeit review of the issue. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court imposed the minimum restitution fine of $300 and defendant lacked the statutory authority to object under the governing law at the time of his sentencing hearing. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)
In any event, even if we agreed with Dueñas, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt since defendant has the ability to pay the fine and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
" ' "Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' " (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of fine and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the record to show that defendant would be unable to satisfy the fine and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) In People v. Potts (2019) 6 Cal.5th 1012 (Potts), the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)
DISPOSITION
The judgment is affirmed.