Opinion
C087793
03-03-2020
THE PEOPLE, Plaintiff and Respondent, v. RANDY LEE WALLACE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE015903)
After a jury found defendant Randy Lee Wallace guilty of attempted murder with a gun enhancement, criminal threats, and two counts of child endangerment, the trial court sentenced him to indeterminate terms of life and 25 years to life plus a determinate term of seven years four months in prison. On appeal, defendant contends the trial court: (1) erred in imposing the upper term on the (deemed principal) child endangerment count, and (2) violated defendant's due process rights and the Eighth Amendment excessive fines clause in imposing various fines and fees. Disagreeing, we affirm, but direct a slight correction to the abstract of judgment.
BACKGROUND
Trial Testimony
The afternoon of August 28, 2017, the victim (L.C.) picked up her seven-year-old son and eight-year-old daughter from school in a borrowed car with tinted windows. The children rode in the backseat of the car as the family travelled to a store. As L.C. sat in the car in the parking lot in front of the store, she saw defendant, the father of her younger child (not in the car), walking nearby. L.C. became upset when she realized that defendant was walking towards a house belonging to Yvonne B., the mother of another child of defendant's, a woman with whom L.C. had a "rocky" relationship.
L.C. drove to Yvonne B.'s house and got out of the car, leaving the two children in the backseat with the windows rolled up. L.C. yelled to the defendant to "come out here" as she stood directly behind the trunk of the car. A woman emerged from the house and L.C. argued with the woman, demanding the woman bring defendant outside.
Defendant emerged from the house and, speaking to others nearby, said he would "handle this bitch." Following a brief confrontation, defendant fired three shots into the rear passenger area of the car, partially shattering a window. The broken glass hit and bloodied L.C.'s son's face. Defendant was standing close to the car when he fired shots into it, as little as "half an arm's length" away. After L.C. screamed that her children were in the car, defendant looked inside the car, remarked that L.C.'s son was bleeding, and then shot L.C. three times.
Yvonne B. testified that she was about five feet from the car when defendant began shooting, and that she did not see any children inside the car at that time because "the back windows were tinted." After defendant shot into the car he looked inside the car, "started crying" and said "Oh, my God" "a few times."
Yvonne B.'s teenage son testified that he was inside the house when he observed L.C. arrive in the car, and when he heard the gunshots. He did not see anyone else in the car until after L.C.'s son was injured.
Numerous color photographs showing the condition of the car and its windows after the shooting were admitted into evidence. (These photographs were not provided to us by the parties on appeal.)
Verdicts and Sentencing
The jury found defendant guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)); count one), criminal threats (§ 422, subd. (a); count two), and two counts of felony child endangerment (§ 273a, subd. (a); counts three & four), one for each child in the car. As to count one, the jury found true the allegations that the attempted murder was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)) as well as various firearm enhancements (§§ 12022.53, subds. (b),(c), (d); 12022.5, subd. (a)).
Undesignated statutory references are to the Penal Code.
The probation report recommended imposition of the upper term of six years on count three; a $10,000 restitution fine pursuant to section 1202.4, subd. (b); a court operations assessment of $160 ($40 per count of conviction) pursuant to section 1465.8, subdivision (a)(1); and a criminal conviction assessment of $120 ($30 per count of conviction) pursuant to Government Code section 70373.
The report listed seven aggravating circumstances and no mitigating circumstances contemplated by the California Rules of Court. Among the aggravating circumstances cited by the report was the observation that defendant's crimes "involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness." (See Cal. Rules of Court, rule 4.421(a)(1).) The report also revealed that defendant had an outstanding balance of $9,824.22 owed to the State of California, and a monthly income of $865 in Social Security disability payments.
Further rule references are to the California Rules of Court. --------
As relevant here, at the sentencing hearing the trial court and parties agreed to changes to the report's narration of the facts of defendant's crimes, which changes are reflected in handwritten text in the report. Except for the factors in aggravation and mitigation and redaction of a few lines in a portion of the report irrelevant to this appeal, the parties expressed no objection to the factual representations and findings of the probation officer.
Defense counsel asked the court to impose the middle term rather than the upper term on count three, saying: "I don't believe -- I think that is where the factors in aggravation and mitigation come into play, and I would note that those factors are to be considered relative to other crimes of the same -- of the same class.
"[Defendant will be] punished for inflicting bodily harm on [L.C.] through the 25 to life enhancement. So I don't believe -- I believe it's dual use and inappropriate for the [rule 4.421](a)(1) to also be considered a factor in aggravation, and specifically as it relates to child endangerment. There was no cause of great bodily harm to either of the children."
The trial court replied: "[W]e have got separate acts of shooting, and one of the reasons why I wanted to reiterate the facts and make sure that the facts were correct in the presentence report was so that the record was clear . . . . As the evidence revealed, two . . . shots went into the . . . car . . . where [L.C.'s son] [was] seated and then a third penetrated the window on the same side . . . . Those are distinctly different acts from then the acts involving the shooting of [L.C.]."
Counsel responded: "My understanding -- and I wasn't present for trial, but there was also a question about whether [defendant] was aware that the children were in the car at the time he shot into the car."
Later in the hearing, the trial court said: "I also have difficulties with the [] argument that the Defendant didn't know the two children were in the car. When I looked, and I looked very closely during the trial and then later, at the photographic exhibits of the car. I could actually see through the car, through the closed rear window. Granted they were tinted windows, but you can see an outline of the contents of the car, even though those windows were closed. . . .
"The pictures of the car driven by [L.C.] show that the defendant shot . . . where a passenger would have been seated. . . . That one of the children in this case wasn't killed or seriously maimed is a miracle.
"It is for that reason that the Court agrees with Probation that the upper term for Count 3 is appropriate. The Defendant's act of shooting into a car that he knew or should have known was occupied by children demonstrates great violence, threat of great bodily harm and a high degree of cruelty, viciousness or callousness." (Italics added.)
In addition to the upper term of six years on count three, the trial court imposed a consecutive sentence of one year four months (one-third the middle term) for count four, and imposed but stayed a three-year sentence for count two, for a determinate term of seven years four months. For count one, the trial court imposed a consecutive sentence of seven years to life, plus 25 years to life for the section 12022.53(d) enhancement to count one, for an indeterminate term of 32 years to life in prison.
Counsel for defendant also objected to the recommended $10,000 restitution fine, asking the court to impose the minimum required restitution fine and strike "any other fines that the Court [was] able to strike," because defendant's "only income in his life has been SSI. He is mentally disabled, suffers from post-traumatic stress disorder, serious depression and other issues."
The trial court ruled: "The Court will make a finding that [defendant] lacks the ability to pay a fine based on the information contained in the presentence report, and in light of the lengthy sentence I have just imposed not impose a fine. [¶] I will grant your request, [defense counsel], to reduce the mandatory restitution fine." The court then ordered a restitution fine in the amount of $2,000 with a like amount stayed, a $120 court facility fee (Gov. Code, § 70373), and a $160 court security fee (§ 1465.8(a)(1)).
Counsel declined the opportunity to raise "anything further" before the trial court ended the hearing.
DISCUSSION
I
The Upper Term
Defendant argues the trial court abused its discretion in imposing the upper term sentence for count three because its decision rested on the erroneous finding that defendant knew or should have known that children were in the back of the car when he shot into it. (AOB 27, 34-35) Defendant insists that the "overwhelming" trial evidence was that no one other than L.C. knew that her children were in the car until after defendant fired into the car. (AOB 32-33) We disagree.
A trial court's sentencing decision is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) That discretion "must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Ibid.)
The trial court may rely on any aggravating circumstances reasonably related to its sentencing decision. (People v. Sandoval, supra, 41 Cal.4th at p. 848; rule 4.420(b).) The court may base an upper term sentence upon any aggravating circumstances it deems significant (ibid.); further, a single factor in aggravation supported by substantial evidence is sufficient support for imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732; People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.)
"At sentencing, the court's function may include resolution of certain factual issues that relate to the choice of appropriate sentence . . . resolv[ing] those issues in light of what occurred at trial, including its own impressions of matters." (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254, italics added, quoting In re Lewallen (1979) 23 Cal.3d 274, 281 [legitimate facts may come to the court's attention through the personal observations of the judge during trial].)
"[O]n appeal a judgment is presumed correct, and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error." (People v. Garza (2005) 35 Cal.4th 866, 881.) A sentencing " 'decision will not be reversed merely because reasonable people might disagree.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
Here, when defendant fired into the car, the record reflects that he was standing very close to it, as little as "half an arm's length" away. As we have explained, the record also reflects that the trial court looked "very closely" at the admitted photographic exhibits of the car windows, and explained that it could see the "outline of the contents of the car," because it could "see through . . . the closed rear window" even though the window was tinted. Defendant's proximity to the car, along with the trial court's personal observations of the translucency of the rear tinted windows (as reflected in the photographs), is substantial evidence that supports the finding defendant knew children were in the back seat of the car (because he saw them) before he fired shots into that area of the car, and thereby demonstrated a high degree of callousness.
We have not been given the photographs to examine. Because defendant bears the burden to demonstrate error, his failure to provide us with the photographic evidence on which the trial court relied leads us to presume that the court's observations when examining that evidence were reasonable. (See Supreme Grand Lodge, A. & M. O. R. C. v. Smith (1936) 7 Cal.2d 510, 514 ["If the appellant deemed it unnecessary or unwise to include these exhibits in the record on appeal, and has thereby left the record weakened to some extent, he should not now be heard to complain of parts of the findings made by the trial court based thereon."]; People v. Chubbuck (2019) 41 Cal.App.5th 1106, 1118 ["It was defendant's burden to . . . provide us with an adequate record to review any issues raised on appeal. Absent an adequate record, we presume the trial court's judgment was correctly decided based upon the evidence before it."].) We see no abuse of discretion.
II
Ability to Pay
Defendant contends that, in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, this case must be remanded for a hearing on his ability to pay the $2,000 restitution fine, the $160 court operations fee, and the $120 court facility fee. Defendant also contends the excessive fines clause of the Eighth Amendment to the United States Constitution mandates an ability to pay hearing for those costs.
Defendant's "excessive fines" claim is forfeited because he did not raise it below, and the argument could easily have been raised before a recent United States Supreme Court opinion extending that provision to the state courts. (See AOB 37-38) (See Timbs v. Indiana (2019) 586 U.S. ___ ; Cal. Const., art. I, § 17 ["Cruel or unusual punishment may not be inflicted or excessive fines imposed," italics added]; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 726-728 [discussing the applicability of both the Eighth Amendment and the California Constitution's "excessive fines" clauses to a California court judgment]; People v. Urbano (2005) 128 Cal.App.4th 396, 406 [considering defendant's claim that a restitution fine was "a constitutionally excessive fine" and referencing both Eighth Amendment case law and the California constitution]; People v. Baker (2018) 20 Cal.App.5th 711, 720 [defendant forfeited his Eighth Amendment claim].)
The Dueñas claim is not forfeited, because we agree with defendant that an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 ; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155.) Further, defendant did object to his ability to pay the various fines and fees, and in response to the objection the trial court lowered the restitution fine and declined to impose other, optional fines and fees. Thus, we reach the merits of the due process claim.
In Dueñas, the Court of Appeal held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines unless it conducts an ability to pay hearing and ascertains the defendant's ability to pay those assessments and fines. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks) rejected the reasoning of Dueñas, under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant's access to the courts and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Id. at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)
We find the reasoning in Hicks sounder and more persuasive than Dueñas. Accordingly, we conclude the imposition of fines, fees, and assessments on an indigent defendant without consideration of ability to pay does not violate due process and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
III
Abstract of Judgment
It appears from our review of the determinate abstract of judgment that defendant is designated as having received a strike sentence when in fact no strike was charged or proven at trial. The abstract should be corrected to properly reflect defendant's status and sentence.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to properly reflect defendant's sentencing status and prepare a new abstract, providing a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P.J. /s/_________
Hoch, J.