People v. Vining CA4/2

Filed 12/7/21 P. v. Vining CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073060

v. (Super. Ct. No. BAF1700694)

DERWIN KEITH VINING II, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Larry R. Brainard, Judge.

Affirmed with directions.

Christine Vento, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth

M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

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 I.

INTRODUCTION

A jury convicted defendant and appellant, Derwin Keith Vining, of child abuse
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homicide (Pen. Code, § 273ab, subd. (a)) of his girlfriend’s four-year-old son, who died

from the wounds defendant inflicted on him. The trial court sentenced defendant to 25

years to life in state prison.

On appeal, defendant argues the trial court prejudicially erred by (1) failing to sua

sponte instruct the jury on involuntary manslaughter, (2) imposing an unconstitutional

sentence, and (3) impermissibly imposing various fines, fees, and assessments. The

People concede, and we agree, that a presentence incarceration fee must be stricken. We

reject defendant’s remaining contentions and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant started dating J.W. around the beginning of 2017. J.W. lived in

apartment with her three children, eight-year-old A.J., five-year-old A., and four-year-old

“Mar.” Defendant did not live with J.W., but spent most of his free time at her

apartment. At the time of Mar’s death, defendant worked nights and stayed with the

children at J.W.’s apartment while she worked during the day.

In June 2017, defendant went to J.W.’s apartment after his shift around 7:00 a.m.

J.W. left for work and defendant went to sleep in J.W.’s bedroom.

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Unless otherwise indicated, all statutory references are to the Penal Code.

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 A few hours later, defendant was woken up by what sounded like a window

breaking. Defendant went into the living room and told the children to do their

homework instead of playing. A.J. asked defendant for some orange juice, and defendant

poured a glass for the siblings to share. Mar spilled the glass of orange juice, which

made defendant mad.

Defendant told A. and A.J. to go to their rooms and gave Mar a “whooping.”

After the beating, Mar threw up on the bathroom floor. Defendant then beat Mar again

for throwing up and went back to sleep.

Mar went into the bedroom that he shared with A.J. and said “my stomach hurts”

and “‘[e]verything hurts.’” Mar writhed in his bed in pain and fell off twice. When Mar

did not get up the second time, A.J. tried to wake up defendant, but defendant ignored

him.

A.J. asked A. to help him. They could not lift Mar into his bed, so they put a

blanket over him and waited for their mother to come home.

J.W. returned home a couple of hours later to check on her children. When she

opened the door, A.J. ran to her and said something was wrong with Mar. J.W. found

Mar lying face down and unresponsive. J.W. yelled for defendant. Defendant picked up

Mar and ran cold water over him in the shower, but he remained unresponsive.

J.W. called 911. Paramedics arrived and took Mar to the hospital, where he was

pronounced dead about an hour later.

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 III.

DISCUSSION

A. Involuntary Manslaughter Instruction

Defendant asserts the trial court erred by failing to sua sponte instruct the jury on

involuntary manslaughter because it is a lesser included offense of child abuse homicide.

We assume without deciding that defendant is correct that involuntary manslaughter is a

lesser included offense of child abuse homicide.

“[A] lesser offense is necessarily included in a greater offense if either the

statutory elements of the greater offense, or the facts actually alleged in the accusatory

pleading, include all the elements of the lesser offense, such that the greater cannot be

committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19

Cal.4th 108, 117.)”

“The failure to instruct on a lesser included offense in a noncapital case does not

require reversal ‘unless an examination of the entire record establishes a reasonable

probability that the error affected the outcome.’ [Citation.] ‘Such posttrial review

focuses not on what a reasonable jury could do, but what such a jury is likely to have

done in the absence of the error under consideration. In making that evaluation, an

appellate court may consider, among other things, whether the evidence supporting the

existing judgment is so relatively strong, and the evidence supporting a different outcome

is so comparatively weak, that there is no reasonable probability the error of which the

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defendant complains affected the result.’ [Citation.]” (People v. Thomas (2012) 53
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Cal.4th 771, 814, footnote omitted.)

In other words, there must be substantial evidence is evidence from which a

reasonable jury could find that the defendant committed the lesser offense, but not the

greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Thus, the question

here “is whether substantial evidence supported a conclusion that defendant committed

only [involuntary manslaughter] and not child assault homicide.” (People v. Wyatt

(2012) 55 Cal.4th 694, 703.)

Child abuse homicide occurs when “‘(1) [a] person, having the care or custody of

a child under the age of eight; (2) assaults the child; (3) by means of force that to a

reasonable person would be likely to produce great bodily injury; (4) resulting in the

child’s death.’” (People v. Wyatt (2010) 48 Cal.4th 776, 780-781.) Manslaughter is “the

unlawful killing of a human being without malice” that occurs “in the commission of an

unlawful act, not amounting to a felony; or in the commission of a lawful act which

might product death, in an unlawful manner, or without due caution and circumspection.”

(§ 192, subd. (b).) “In addition to these statutorily defined means of committing

involuntary manslaughter, the California Supreme Court has defined a nonstatutory form

of the offense, based on the predicate act of a noninherently dangerous felony committed

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We reject defendant’s argument that the failure to instruct on involuntary
manslaughter as a lesser included offense of child abuse homicide is reviewed for
prejudice under the federal Chapman standard instead of the California standard. AOB 39
(See People v. Thomas, supra, 53 Cal.4th at p. 814.)

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without due caution and circumspection.” (People v. Butler (2010) 187 Cal.App.4th 998,

1007.) Thus, “there are three types of acts that can underlie commission of involuntary

manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony.” (Id. at

p. 1006.)

The mens rea for all three predicate acts is criminal negligence, which is “conduct

that is ‘such a departure from what would be the conduct of an ordinarily prudent or

careful man under the same circumstances as to be incompatible with a proper regard for

human life, or in other words, a disregard of human life or an indifference to

consequences.’ [Citation.]” (People v. Butler, supra, 187 Cal.App.4th at p. 1008.) This

means that the defendant did “not intend to kill and [did] not act with conscious disregard

for human life.” (CALCRIM No. 580.) This is an objective inquiry which asks whether

“a reasonable person would have been aware of the risk.” (Ibid.)

We conclude it is not reasonably probable that the jury would have convicted

defendant of involuntary manslaughter, but not child abuse homicide, if it had been given

the option. It is undisputed that four-year-old Mar was in defendant’s care when he died

as a result of the injuries defendant inflicted on him. The evidence that defendant used

force on Mar that a reasonable person knew would be likely to produce great bodily

injury was overwhelming.

At the time of his death, Mar was four years old and about 42 pounds. Defendant

admitted that he “whooped” Mar with a belt and his hand. Although defendant denied

hitting Mar with a closed fist, defendant had swollen knuckles. These injuries were

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consistent with defendant having hit Mar with a closed fist and showed his consciousness

of guilt and awareness of the significant amount of force that he used to beat Mar. After

defendant “whooped” Mar, Mar threw up. Defendant cleaned up the vomit and

proceeded to assault Mar again for throwing up on the floor. Defendant went to sleep

and ignored Mar’s brother when he told defendant that Mar would not wake up.

Mar’s injuries confirm that defendant used force that a reasonable person knew

was likely to cause Mar great bodily injury. Mar had bruises and abrasions caused by

blunt force impact (such as a fist) all over his body, including on his head, face, torso,

and all of his extremities. The force defendant used caused bruising on Mar’s diaphragm

and lungs and lacerations on his liver and spleen, which caused severe bleeding. A

physician testified that Mar’s injuries were similar to those one would sustain in a motor

vehicle accident, falling off of a two-story building, or being hit “very hard” by an adult

with a “full-force punch.”

The record thus overwhelmingly shows that defendant was guilty of child abuse

homicide because he killed Mar by assaulting him with force that a reasonable person

knew would likely cause great bodily injury. (People v. Wyatt, supra, 48 Cal.4th at pp.

780-781.) Given Mar’s extensive, serious injuries and defendant’s admission that he

“whooped” Mar and then “whooped” him again after he threw up from the first

“whooping,” “the only possible inference the jury could draw from the evidence

presented” is that a reasonable person would have known that defendant’s assault on Mar

was likely to cause him great bodily injury. (People v. Evers (1992) 10 Cal.App.4th 588,

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597.) A reasonable jury thus could not have found that defendant was guilty of only

involuntary manslaughter and not child abuse homicide. As a result, any error in failing

to instruct the jury on involuntary manslaughter was harmless.

B. Defendant’s Sentence Is Not Unconstitutional

Defendant argues his 25-years-to-life sentence violates the federal and California

constitutions because it is “grossly disproportionate to his crime.” We agree with the

People that defendant forfeited the issue by failing to object to the sentence on

constitutional grounds. (See People v. Baker (2018) 20 Cal.App.5th 711, 720.)

Nonetheless, we exercise our discretion to address the issue on the merits “to avert

[defendant]’s claim of inadequate assistance of counsel.” (People v. Yarbrough (2008)

169 Cal.App.4th 303, 310.) We conclude defendant’s sentence is not unconstitutional.

“A punishment violates the Eighth Amendment if it involves the ‘unnecessary and

wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the

crime.’ [Citation.] A punishment may violate article I, section 17 of the California

Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks

the conscience and offends fundamental notions of human dignity.’” (People v. Retanan

(2007) 154 Cal.App.4th 1219, 1230-1231.)

“Outside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.” (Rummel v. Estelle

(1980) 445 U.S. 263, 272.) In Rummel v. Estelle, the United States Supreme Court held a

life sentence for credit card fraud of $80, passing a $28.36 forged check, and obtaining

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$120.75 was not grossly disproportionate in violation of the Eighth Amendment.

Similarly, in Lockyer v. Andrade (2003) 538 U.S. 63, the Court upheld two consecutive

25-years-to-life sentences imposed for two thefts of items worth less than $150. Given

that the United States Supreme Court has repeatedly upheld sentences of 25 years to life

for minor property crimes, it follows that defendant’s sentence of 25 years to life for child

abuse homicide does not violate the federal constitution.

The California Constitution prohibits the infliction of cruel or unusual punishment.

(Cal. Const., art. I, § 17.) A punishment violates the state constitutional mandate against

cruel or unusual punishment “if, although not cruel or unusual in its method, it is so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424

(Lynch), superseded by statute on other grounds as stated in People v. Caddick (1984)

160 Cal.App.3d 46, 51-52.)

Under the California constitution, we apply a three-pronged test in determining

whether a sentence constitutes cruel or unusual punishment. (People v. Cuevas (2001) 89

Cal.App.4th 689, 702.) Under that approach, we (1) examine the nature of the offense

and offender, (2) compare the punishment with the penalty for more serious crimes in the

same jurisdiction, and (3) measure the punishment to the penalty for the same offense in

different jurisdictions. (Lynch, supra, Cal.3d 410 at pp. 425-427.)

However, defendant focuses only on the first prong, so we need not engage in the

second or third prong. (See People v. Crittenden (1994) 9 Cal.4th 83, 156-157.)

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 When applying the first prong of the Lynch analysis, we evaluate the defendant’s

personal characteristics, including his or her age, prior criminality, and mental

capabilities. (People v. Lucero (2000) 23 Cal.4th 692, 739.) We also consider the

circumstances of the current offenses, including the defendant’s motive in committing the

offense, the manner in which the crime was committed, and the consequences of the

defendant’s acts. (Ibid.; People v. Dillon (1983) 34 Cal.3d 441, 479.)

We conclude defendant’s sentence is justified based solely on the nature of his

offense. Defendant beat Mar, his girlfriend’s four-year-old, 42-pound son, because he

spilled a glass of orange juice. Mar immediately vomited afterwards, and defendant beat

him again for vomiting. Mar told his brother that “everything” hurt as he writhed in pain

before falling off his bed and losing consciousness. When Mar’s siblings told defendant

that something was wrong with Mar, defendant ignored them, did not check on Mar, and

went back to sleep.

Defendant hit Mar so hard that it burst his spleen and liver, causing him to

internally bleed to death in about 30 minutes. The wounds defendant inflicted on Mar

caused defendant’s knuckles to swell, which indicated that he hit Mar with a closed fist

and significant force.

Although defendant has a limited criminal history, that does not outweigh the

“seriousness of the crime and the circumstances surrounding its commission.” (People v.

Szadziewicz (2008) 161 Cal.App.4th 823, 845.) At the time of his offense, defendant was

27 years old and was a father figure to Mar and his siblings. He does not suffer from any

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intellectual or developmental disability, yet he brutally beat four-year-old Mar, inflicting

mortal wounds, because he was upset with Mar’s behavior. Given the immeasurable pain

defendant inflicted on Mar, his siblings, and his mother, defendant’s sentence does not

shock the conscience or offend fundamental notions of human dignity. (See People v.

Christensen (2014) 229 Cal.App.4th 781, 803-804 [27 years to life for five counts of

lewd and lascivious conduct against three victims under the age of 14 not cruel or

unusual]; People v. Baker, supra, 20 Cal.App.5th at p. 720 [holding sentence of 15 years

to life for orally copulating six-year-old “is not so disproportionate as to exceed the very

high constitutional threshold”].) Because we conclude defendant’s sentence is

constitutional, we reject his claim that his trial counsel was ineffective for failing to

object to his sentence as unconstitutional.

C. Fines, Fees, and Assessments

At sentencing, the trial court stated it would impose a $7,500 restitution fine

(§ 1202.4, subd. (b)), a $7,500 parole revocation fine (§ 1202.45, subd. (b)), a $40 court

operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code,

§ 70373), a $514.58 booking fee (Gov. Code, § 29550.1), a $1,500 fee for presentence

incarceration costs (§ 1203.1c), and $12,220.48 in victim restitution (§ 1202.4, subd. (f)).

The trial court also indicated that it would require defendant to pay the costs of a

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presentence probation report fee to be determined by the probation department and
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imposed at a later hearing, but that the fee would not exceed $1,095 (§ 1203.1b).

Defense counsel informed the trial court that defendant did not have “the ability to

make any payments” because he had no money. The trial court responded, “I believe

under the circumstances of this case, I’m not supposed to actually make that finding at

this time.” The trial court then imposed the fines, fees, and assessments, except for the

presentence probation report fee.

Defendant contends the $1,500 fee for his presentencing costs was unauthorized.

He also contends the trial court erred by imposing the fines, fees, and assessments

without determining whether he had the ability to pay them. Relatedly, defendant argues

the trial court erred by declining to determine if he could pay the presentence probation

report fee at sentencing. He therefore argues the matter must be remanded to allow the

trial court to determine whether defendant can pay the fines, fees, and assessments.

As the People rightly concede, the trial court erroneously imposed the $1,500 fee

for defendant’s presentence incarceration costs. Section 1203.1c, subdivision (a)

provides in relevant part that if “a defendant is convicted of an offense and is ordered to

serve a period of confinement in a county jail, city jail, or other local detention facility as

a term of probation or a conditional sentence,” the court may order the defendant to pay

“the reasonable costs of such incarceration.” (§ 1203.1c, subd. (a), italics added.)

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The record does not disclose whether the hearing occurred or the amount
defendant was ordered to pay for the presentence probation report.

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 The trial court sentenced defendant to state prison, not a county jail, city jail, or

other local detention facility. Section 1203.1c, subdivision (a) therefore does not apply

here. As a result, the $1,500 fee the trial court imposed for defendant’s presentence

incarceration costs was unauthorized and must be stricken. (See People v. Scott (1994) 9

Cal.4th 331, 354.) We therefore strike the $1,500 fee. (See People v. Smith (2001) 24

Cal.4th 849, 854 [appellate court may strike unauthorized sentence].)

As to the remaining challenged fines, fees, and assessments, defendant contends

the trial court erroneously imposed them without determining whether he has the ability

to pay them.

As for the $7,500 and $12,220.48 victim restitution fines, the trial court may

impose a restitution fine even if the defendant cannot pay it. (People v. Potts (2019) 6

Cal.5th 1012, 1056.) Inability to pay is but “a factor for the court to consider in setting

the amount of a restitution fine, alongside ‘any relevant factors.’” (Id. at p. 1056.) In

setting the restitution fines here, the trial court properly exercised its discretion after it

considered defendant’s argument that he could not afford the fines and fees. “The court

was permitted to conclude that the monetary burden the restitution fine imposed on

defendant was outweighed by other considerations.” (Id. at pp. 1056-1057.) The trial

court thus did not err in imposing the restitution fines without deciding whether

defendant could pay them.

The remaining fees and assessments—a $40 court operations assessment

(§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $514.58

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booking fee (Gov. Code, § 29550.1)—total $584.58. So, if the trial court later imposes

the maximum $1,095 for the presentence probation report fee, defendant will be liable for

at most $1,679.58 in fees and assessments.

We assume without deciding that the trial court erroneously imposed a probation

report fee without determining whether defendant can pay it, and also assume that it will

be the maximum $1,095. As to the other fees and assessments, because the trial court did

not determine whether defendant could pay them, “[u]nder Dueñas, this was error, and

we must remand for an ability to pay hearing unless the error was harmless.” (People v.

Taylor (2019) 43 Cal.App.5th 390, 401.) We conclude the error was harmless. We

likewise conclude any error in imposing a presentence report fee was harmless.

Nothing in the record suggests defendant will not be able to work while serving

his sentence. At the time of sentencing, defendant was 29 years old, and he has no

reported health problems. We thus assume defendant will obtain a prison job paying the

minimum of $12 per month. (See Cal. Code. Regs., tit. 15, § 3041.2.) We also assume

the restitution fines will remain outstanding, which will leave defendant with $5.40 per

month to settle at most $1,679.58 in fees and assessments. (People v. Taylor, supra, 43

Cal.App.5th at p. 402.) At that rate, defendant will pay off the fees in 311 months, or 26

years.

Thus, if defendant serves 26 years, he will have enough time to pay off the fees

and assessments, even if the trial court later imposes the maximum amount for the

presentence probation report. Accordingly, defendant “will have sufficient time to earn

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[$1,679.58] during his sentence, even assuming [he] earns nothing more than the

minimum.” (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) And if he only serves

25 years of his sentence of 25 years to life and makes the minimum while incarcerated,

he will make $1,620, leaving him with a balance of about $60 upon release. Because he

would be in his mid-50s by then, he will have enough time to earn money to pay the

outstanding fees and assessments. (Ibid. ; People v. Hennessey (1995) 37 Cal.App.4th

1830, 1837 [court may consider defendant’s future earnings in prison and after release in

determining defendant’s present ability to pay]; People v. Ramirez (1995) 39 Cal.App.4th

1369, 1377 [a trial court may consider the defendant’s future ability to pay, including his

ability to earn wages while in prison]; People v. DeFrance (2008) 167 Cal.App.4th 486,

505 [defendant sentenced to prison did not show absolute inability to pay $10,000

restitution fine even though prison wages would make it difficult for him to pay the fine,

it would take a very long time, and the fine might never be paid].)

Thus, on this record, any Dueñas error as to the fees and assessments was

harmless beyond a reasonable doubt. (People v. Jones, supra, 36 Cal.App.5th at p.

1035.) The trial court therefore did not prejudicially err in imposing the fines, fees, and

assessments without determining if defendant had the ability to pay them.

IV.

DISPOSITION

The $1,500 fee imposed for defendant’s presentence incarceration costs is

stricken. The judgment is affirmed as modified. The trial court is directed to prepare an

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amended abstract of judgment reflecting the judgment as modified, and to forward a

certified copy of the amended abstract of judgment to the Department of Corrections and

Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

MILLER
Acting P. J.

RAPHAEL
J.

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