Filed 10/29/20 P. v. Davila CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157826
v.
ALBERT DAVILA, JR., (Solano County
Super. Ct. No. VCR232169)
Defendant and Appellant.
Appellant Albert Davila, Jr., was on October 18, 2018, charged by the
Solano County District Attorney with a single count of evading a pursuing
peace officer in willful disregard of public safety. (Veh. Code, § 2800.2,
subd. (a).) (Section 2800.2, subd. (a).) After a one-day trial, a jury found him
guilty. At sentencing on July 9, 2019, the court suspended imposition of
sentence and placed him on formal felony probation with the condition,
among others, that he serve 210 days in county jail.
This timely appeal advances two claims: (1) the court’s conclusion that
section 2800.2, subdivision (a) eliminated judicial discretion to impose a jail
term of less than 180 days misinterpreted the statute, and the failure to
consider imposition of a lesser term constituted a denial of due process
requiring remand for resentencing; and (2) the court’s failure to consider
appellant’s ability to pay before imposing restitution, fines, and other fees
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also requires that the case be remanded to enable the court to make that
inquiry.
For the reasons set forth below, we shall find it unnecessary to
determine whether the court misinterpreted section 2800.2, subdivision (a)
because, even if it did, it was harmless. We shall also find that, in the
circumstances of this case, the court’s failure to inquire into appellant’s
ability to pay before imposing various fines and fees was not prejudicial error.
FACTS AND PROCEEDINGS BELOW
The People’s Evidence
On Monday, May 12, 2018, about 7:00 p.m., Vallejo Police Officers
Travis Aspergren and Ken Jackson saw a gray, pickup truck “spinning
donuts” on Pomona Street in a residential neighborhood of North Vallejo.
The truck was several blocks away from the officers, who noticed parked
vehicles on both sides of the street near the truck and children playing on the
nearby sidewalk. Officer Aspergren described “donuts” as “when a car stays
in one place and drives around in a circle, causing skid marks and smoke.”
After observing this activity, Officer Aspergren activated his patrol car’s
emergency lights and drove toward the truck while Officer Jackson notified
dispatch about what was happening.
Concerned about public safety, the officers intended to conduct a traffic
enforcement stop. After it stopped spinning, the truck proceeded toward the
oncoming patrol car, eastbound on Whitney toward Pomona Street. When
the driver of the truck saw the officers, he turned onto Pomona without
signaling or slowing down. The officers followed the truck, which was then
travelling at 40 to 50 miles per hour in a 25 miles-per-hour residential zone.
At the intersection of Pomona and Stanford Streets the truck turned right
onto Stanford without halting at a stop sign. The truck ran through another
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stop sign at Stanford and Mini Streets, where children were playing in the
street and pedestrians were on the sidewalks.
At the intersection of Stanford and Corcoran Streets, the driver tried to
turn right into Corcoran but was unable to complete the turn because the
vehicle was moving too fast. Instead, the driver drove onto the lawn and
within five feet of the house at 156 Stanford Street. The driver then put the
truck into reverse and crossed Stanford before crashing into two parked cars
and a tree. When the driver, appellant, alighted from the vehicle, Officers
Aspergren and Jackson approached him with guns drawn, ordered him to the
ground, and handcuffed him. In the truck, the officers found an open bottle of
vodka. The owner of 156 Stanford Street found damage from the truck in the
front of her house, as well as cracked drywall inside the home.
The Defense Evidence
Appellant, the sole defense witness, testified that on the day of the
incident he attended a family barbecue. After leaving the event and on the
way to a McDonald’s, he stopped at a stop sign at the intersection of Mini and
Whitney Streets. While there, “a couple of people from the neighborhood that
were local . . . told me my car was old and it couldn’t do donuts and
everything.” Deciding to show them wrong, appellant performed some
donuts. Seeing some of the neighborhood people smile, appellant drove to the
smaller intersection at Stanford and Corcoran, thinking it was “more of a
challenge.” He tried to slow down as he approached the intersection but his
brakes failed and he drove onto the lawn of a house. As he backed up, the
engine unexpectedly “accelerated extremely fast,” and he tried but was
unable to use the handbrake to avoid hitting parked cars.
Appellant testified he had not seen officers Aspergren and Jackson
until after he hit the parked cars and thought they were there to help, not
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arrest him. He didn’t see the officers earlier because he was distracted by the
smoke and noise from his donuts. Appellant testified, “I couldn’t intend to
evade them if I didn’t see them.”
DISCUSSION
As earlier noted, appellant makes two claims—that the trial court
erred in (1) interpreting section 2800.2, subdivision (a) as depriving it of
discretion to impose a jail term of less than 180 days, and (2) failing to
consider appellant’s ability to pay before imposing restitution, fines, and
other fees—and we address them in turn.
I.
Section 2800.2, subdivision (a) provides as follows:
“If a person flees or attempts to elude a pursuing peace officer in
violation of Section 2800.1 and the pursued vehicle is driven in a willful or
wanton disregard for the safety of persons or property, the person driving the
vehicle, upon conviction, shall be punished by imprisonment in the state
prison, or by confinement in the county jail for not less than six months nor
more than one year. The court may also impose a fine of not less than one
thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or
may impose both that imprisonment or confinement and fine.” (Italics
added.)
The offense section 2800.2, subdivision (a) refers to is an “alternative
felony/misdemeanor, commonly referred to as a “wobbler” (People v. Statum
(2002) 28 Cal.4th 682, 685); that is, the offense “is deemed a felony unless
charged as a misdemeanor by the People or reduced to a misdemeanor by the
sentencing court under Penal Code section 17, subdivision (b).” (Id. at
p. 685.) In this case, the People did not charge the offense as a misdemeanor
and the court did not reduce it to the lower offense.
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The probation department recommended appellant be granted
probation and deferred to the court whether it should include a jail sentence.
At the sentencing hearing, the court observed that even if it granted
probation the plain language of section 2800.2, subdivision (a) required a jail
term between six months and one year as a condition of probation.
Disagreeing, defense counsel argued that the statute does not explicitly
mandate punishment “by imprisonment in the state prison, or by
confinement in the county jail for not less than six months . . .” where, as
here, the person is granted probation. Counsel urged the court to impose a
jail term less than six months.
After appellant waived arraignment, the court observed that though it
agreed with the People that a low term was possible, it was nevertheless also
“willing to afford [appellant] the opportunity of formal probation.” The court
expressed its determinations as follows:
“So I will suspend the imposition of judgment and sentence, place him
on formal probation for three years. I’m going to sentence him to—and by the
way, the law under 2800.2 says the following if a person is convicted of this,
‘Shall be punished in state prison or in county jail for not less than six
months, no more than a year. Shall be punished by imprisonment in state
prison or confinement in county jail for not less than six months, no more
than a year.
“I will take that on its face for what I think that means. I’m going to
sentence him to 210 days today. I’m coming off of the People’s request for a
year because, again, despite the recklessness of this, it was somewhat of a
short pursuit.
“And, again, doing donuts in the street where there is kids playing is
extremely reckless, and then losing control of his vehicle and damaging
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property in the community, again, is extremely dangerous. So, I’m going to
come off the one year and come down to 210 days.
“I’m going to give him credit for two plus two against that.[1] He will
serve that [sentence] forthwith. I will order a 300-dollar fine pursuant to
1202.4. 300-dollar fine pursuant to 1202.44. That will be stayed. 300-dollar
probation fee. 40-dollar security surcharge. A 30-dollar criminal conviction
fee.
“He will pay restitution to the victims as determined by Probation. We
will retain jurisdiction for any restitution disputes. He will provide financial
information as requested by Probation. Report to Probation for a financial
evaluation as to his ability to pay these costs.”
Appellant argues that the provisions of section 2800.2, subdivision (a)
relating to custody “only provides that the convicted defendant ‘shall be
punished by imprisonment in the state prison, or by confinement in the
county jail for not less than six months nor more than one year.’ It says
nothing about the length of any imprisonment which is a term of probation.”
According to appellant, “[t]he alternative sentencing language in section
2800.2, subdivision (a), places no restriction on the court’s authorization to
sentence a misdemeanor and impose a county jail term. Such language refers
only to imposition of sentence and does not impose any limitations on the
court’s discretion to impose jail time as a term of probation, when the court
suspends imposition of sentence and grants probation. When the court chose
to grant formal felony probation to appellant, it could have elected to require
any county jail term up to one year or none at all. No jail time is mandated
as a condition of probation for violation of Vehicle Code section 2800.2,
That is, the court awarded appellant four days of credit pursuant to
1
Penal Code section 4019.
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subdivision (a). The court had broad discretion and could have considered
granting misdemeanor probation with no jail time.”
Appellant maintains that because the court “did not understand the
true scope of its sentencing power,” we should remand the case and “advis[e]
the court that it is not required to impose a minimum jail term when it orders
probation.”
We find it unnecessary to address appellant’s theory regarding the
scope of the court’s sentencing authority. As the Attorney General points out,
not only has appellant already served the 210-day jail sentence imposed by
the court but, as we shall explain, it is implausible appellant would have
received a lesser sentence absent the alleged error, even if prejudice is
measured by the high standard prescribed in Chapman v. California (1976)
386 U.S. 18 (Chapman).
As appellant recognizes, courts may not “ ‘ “declare principles or rules
of laws which cannot affect the matter in issue in the case before it” ’ ” and
“ ‘ “[a] case becomes moot when a court ruling can have no practical impact or
cannot provide the parties with effective relief.” ’ ” (In re Arroyo (2019) 37
Cal.App.5th 727, 732.) While appellant has not finished serving his felony
sentence of three years on probation, we can and do take judicial notice of the
fact that more than 210 days have passed since July 9, 2019, when the court
ordered him to “forthwith” begin serving that period in county jail as a
condition of felony probation. As courts have frequently held, when
“ ‘pending an appeal from the judgment of a lower court, and without any
fault of the defendant, an event occurs which renders it impossible for [the
reviewing] court, if it should decide the case in favor of plaintiff, to grant him
any effectual relief whatever, the court will not proceed to a formal judgment,
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but will dismiss the appeal. [Citations.]” [Citations,]’ ” (In re Sodersten
(2007) 146 Cal.App.4th 1163, 1217.)
The Attorney General acknowledges several exceptions to this rule, as
where the defendant has served his sentence but could suffer adverse
collateral consequences in the future as a result of either the sentence or the
conviction, citing as an example, People v. Ellison (2003) 111 Cal.App.4th
1360, 1368–1369. However, the Attorney General maintains no such
exception applies here because the only adverse consequences appellant will
suffer results from the conviction by a jury of felony evasion of a peace officer.
Appellant does not quarrel with the Attorney General’s argument
because he does not rely on the exception the Attorney General addresses or
any other established exception to the mootness rule. Appellant argues
instead that the case is not genuinely moot. According to appellant, reversal
and remand have a “practical impact” that is “positive.” This is so, he says in
his reply brief, because the “Full Resentencing Rule” announced by the
Supreme Court in People v. Buycks (2018) 5 Cal.5th 857, gives the trial court
authority, following recall of a sentence, to “modify every aspect of the
sentence, and not just the portion subject to recall.” (Id. at p. 893.) Thus,
appellant argues, “[w]ith a clear understanding of the correct sentencing
parameters, Buycks leaves open the possibility that given appellant’s positive
compliance on probation and with an updated probation report, the court
could reduce the conviction to a misdemeanor and resentence appellant to a
misdemeanor under [Penal Code] section 17, subdivision (b).”
Appellant’s contention—that this appeal is not moot because the
alleged error is prejudicial—is untenable.
First, nothing in the record indicates either that appellant has
demonstrated “positive compliance” on probation or that an updated post
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remand sentencing report would be so favorable to appellant that it would
induce the court to reduce appellant’s offense from a felony to a
misdemeanor. Furthermore, the trial judge’s explanation for requiring
appellant to serve 210 days in jail provide no reason to think he would reduce
appellant’s offense from a felony to a misdemeanor if now provided the
opportunity. As noted in the probation department’s report to the court,
appellant’s “record of criminal conduct, as both an adult and a juvenile,
indicates a pattern of criminal conduct, which appears to be escalating.” As
an adult, appellant already has two prior misdemeanor convictions for “hit
and run and wet and reckless” driving offenses, and his conduct in this case
indicates he was not chastened by the punishment he received for the prior
driving offenses.
We ordinarily review sentencing error for prejudice under the standard
prescribed in People v. Watson (1956) 46 Cal.2d 818, 836, which is whether it
is reasonably probable the defendant would have received a more favorable
ruling absent the error. Appellant maintains that the higher standard
prescribed in Chapman, supra, 386 U.S. at pages 23–24—that the error be
harmless beyond a reasonable doubt—applies here because the alleged
sentencing error violated his due process right under the Fourteenth
Amendment.
The trial court’s stated agreement with the reasonableness of the term
proposed by the People due to the recklessness of appellant’s conduct that
endangered the lives of children and caused property damage, the
thoughtfulness of the court’s explanation of the sentence it imposed, and
appellant’s prior violations of the Vehicle Code indicate the court considered
the 210-day jail term somewhat lenient, which hardly suggests it would likely
reduce the felony offense of which appellant was convicted by a jury to a
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misdemeanor if given the opportunity. This conclusion is reinforced by the
fact that the court declined to impose a 180-day jail term it believed it could
have imposed. The sentencing error, if any, would be harmless under both
the Chapman and Watson tests.
Thus, we turn to the remaining issue, whether it was error for the court
to impose restitution, fines, and other fees on appellant without first
investigating his ability to pay.
II.
At the end of the sentencing hearing, the court ordered appellant to pay
a $300 restitution fine, which was the statutory minimum (Pen. Code,
§ 1202.4), as well as a $40 court operations fee (Pen. Code, § 1465.8), a $350
probation administration fee (Pen. Code, § 1203.1, subd. (b)), and a $30
criminal conviction assessment. (Gov. Code, § 70373.) The court made no
inquiry into appellant’s ability to pay prior to imposing these fines and fees.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
appellant maintains that the fines and other assessments just described were
imposed unconstitutionally. Dueñas held that due process requires a trial
court to conduct a hearing to ascertain a defendant’s ability to pay before
imposing court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373. (Dueñas, at p. 1164.)
Dueñas further held that restitution fines under Penal Code section 1202.4
must be imposed and stayed unless and until the People demonstrate that a
defendant has the ability to pay the fine. (Dueñas, at pp. 1172–1173.)
Courts after Dueñas have reached different conclusions on the issue of
forfeiture. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155
[finding forfeiture, as “Dueñas applied law that was old, not new”]
with People v. Castellano (2019) 33 Cal.App.5th 485, 489 [declining to find
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forfeiture for “a newly announced constitutional principle that could not
reasonably have been anticipated at the time of trial”]; People v. Johnson
(2019) 35 Cal.App.5th 134, 138 [noting while Dueñas was founded on
longstanding constitutional principles, the statutes at issue “were routinely
applied for so many years without successful challenge [citation], [court was]
hard pressed to say its holding was predictable and should have been
anticipated”].)2
On the merits, Dueñas has been criticized by some but by no means all
Courts of Appeal. (See, e.g., People v. Caceres (2019) 39 Cal.App.5th 917, 923,
926, review den. Jan. 2, 2020 [Dueñas due process analysis did “not justify
extending its holding beyond those facts”]; People v. Aviles (2019) 39
Cal.App.5th 1055, 1060, review den. Dec. 11, 2019 [Dueñas wrongly decided;
constitutional challenge to imposition of fines, fees, and assessments should
be based on excessive fines clause of Eighth Amendment]; People v. Hicks
(2019) 40 Cal.App.5th 320, 325–329, review granted Nov. 26, 2019, S258946
[Dueñas wrong to conclude due process considerations may bar assessments,
fines, and fees; such costs and fines do not deny criminal defendants access to
courts]; People v. Kopp (2019) 38 Cal.App.5th 47, 95–97, review granted Nov.
13, 2019, S257844 [rejecting Dueñas analysis with respect to restitution
fines, which should be analyzed under excessive fines clause, but following
Dueñas as to court fees and assessments].)
2 This division has in prior cases agreed with the Castellano and
Johnson courts. Given courts’ longstanding routine imposition of statutory
fees, fines, and assessments prior to Dueñas, we do not think it reasonable to
say the constitutional rule announced in that case should have been
anticipated by all competent counsel. However, as will be seen presently, no
such anticipation was required in this case; although forfeiture for other
reasons remains at issue.
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Dueñas is clearly distinguishable from this case because, unlike
Dueñas, appellant did not at sentencing object to the fines and assessments
he now challenges. However, the reason he failed to object did not result
from an understandable failure to anticipate a “newly announced
constitutional principle that could not reasonably have been anticipated at
the time of trial.” (People v. Castellano, supra, 33 Cal.App.5th at p. 489.)
Appellant was sentenced on July, 9, 2019, which was six months after Dueñas
was decided. Thus, relying on People v. Scott (1994) 9 Cal.4th 331, which
holds that in order to preserve a sentencing issue for appellate review, the
defendant must raise the issue in the sentencing court, the Attorney General
maintains that appellant’s failure to make a Dueñas objection at his
sentencing cannot be excused and forfeits the Dueñas objection he belatedly
advances in this court.
In response, appellant urges us to adopt the analysis of the Sixth
Appellate District in People v. Santos (2019) 38 Cal.App.5th 923, which
according to appellant “recently held that failure to object below did not
forfeit appellate challenges to monetary assessments.” The opinion in Santos
provides appellant no support.
Santos’s sentencing occurred one year before Dueñas was decided,
Santos did object to the probation department’s recommended restitution
fine, and the parties in Santos agreed that “the trial court should not have
imposed the court operations and criminal conviction assessments without
first determining Santos’s ability to pay, since the record shows that he was
indigent at the time of sentencing” and that “the matter should be remanded
for an ability-to-pay determination. (People v. Santos, supra, 38 Cal.App.5th
at p. 933.) The situation in this case is dramatically different.
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Appellant’s alternative argument is that “any failure to challenge the
monetary assessments because of appellant’s inability to pay is based on
ineffective assistance of counsel.” However, as the Supreme Court has
explained, it is particularly difficult to prevail on a claim of ineffective
assistance on direct appeal (People v. Mai (2013) 57 Cal.4th 986, 1009), and
the conventional means of raising such claims is a petition for writ of habeas
corpus. (People v. Pope (1979) 23 Cal.3d 412, 426.) To prevail on appeal,
appellant must demonstrate not only that counsel’s representation fell below
an objective standard of reasonableness and resulting prejudice, but also that
the record “ ‘ “affirmatively discloses that counsel had no rational tactical
purpose for [his or her] act or omission.” ’ ” (People v. Lucas (1995) 12 Cal.4th
415, 436–437, quoting People v. Zapien (1993) 4 Cal.4th 929, 980.) “ ‘ “[If] the
record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation,” the claim on appeal must be rejected.’ (People v. Wilson (1992)
3 Cal. 4th 926, 936, quoting [Pope, at p.] 426.)” (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266.)
The record before us is entirely silent as to why defense counsel raised
no objection to the fines and fees imposed by the court, which totaled $720,
based on ability to pay. But the record does show that appellant graduated
from high school eight years ago and attended a community college; and
though he is currently unemployed he has worked for United Parcel Service,
Target, and most recently Petaluma Poultry; and he recently received an
opportunity of employment from Federal Express. According to the probation
department, appellant “has also expressed interest in going back to school in
the future to study business as he hopes to open his own hair/nail salon one
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day.” Counsel may have believed appellant had the ability to pay and raising
an objection on this ground would be futile (People v. Thompson (2010) 49
Cal.4th 79, 122 [“[c]ounsel is not ineffective for failing to make frivolous or
futile motions”]), or even could risk discouraging the court from eliminating
or lowering a jail term. Appellant has not met his burden of showing
ineffective assistance of counsel on appeal. (People v. Keene (2019) 43
Cal.App.5th 861, 864–865.)
DISPOSITION
For the foregoing reasons, the judgment, including the sentence
imposed, are affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Davila, Jr. (A157826)
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