Filed 12/6/21 P. v. Gaoa CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078199
Plaintiff and Respondent,
(Super. Ct. No. MCR051903)
v.
SENTER JOHN GAOA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
In the early morning hours of June 26, 2015, defendant Senter John Gaoa inflicted
corporal injury on his girlfriend and vandalized her vehicle. Proceeding to trial on a
theory of self-defense, defendant offered an expert on “intimate partner battering” to
support his defense. The trial court excluded the testimony as irrelevant because
defendant, while testifying at trial, never claimed he was defending himself or feared
injury from his girlfriend. Thereafter, the trial court denied defense counsel’s request to
recall defendant to supplement his testimony. A jury found defendant guilty of inflicting
corporal injury on a cohabitant and misdemeanor vandalism, and the court found true the
prior conviction allegations.
The trial court partially rejected defendant’s invitation to strike his prior
convictions, denied probation, and sentenced defendant to 25 years to life under the
“Three Strikes” law (Penal Code, §§ 667, subds. (b)–(i), 1170.12)1 and ordered defendant
pay fines, fees, and assessments totaling $890 for count 1 and $40 for count 2.
Defendant contends on appeal (1) the trial court abused its discretion in denying
his request to recall himself to supplement his trial testimony; (2) the trial court abused its
discretion in denying his motion for mistrial after excluding testimony from his expert
witness; (3) defense counsel was ineffective in failing to establish the foundation
necessary for admission of expert testimony on intimate partner battering; (4) the trial
court erred in instructing the jury that they could infer defendant’s consciousness of guilt
from his false statements to the police without also sua sponte instructing as to the effect
of defendant’s voluntary intoxication; (5) the trial court abused its discretion in failing to
strike all of his prior serious felony convictions; (6) the trial court violated due process by
imposing fines, fees, and assessments without determining whether defendant has the
ability to pay them; and (7) we should vacate any balance of the $750 presentence report
1 Statutory references are to the Penal Code unless otherwise noted.
2.
fee imposed pursuant to former section 1203.1b and the $108.19 booking fee imposed
pursuant to former Government Code section 29550.2, unpaid as of July 21, 2021, in
light of Assembly Bill No. 1869 (2019–2020 Reg. Sess.).
The People respond that the trial court properly denied defendant’s request to
recall himself, motion for mistrial, and invitation to strike his prior serious felony
convictions, and that counsel was not ineffective in either laying an adequate foundation
for expert testimony or failing to request a jury instruction on the effect of voluntary
intoxication. The People, however, concede that remand is necessary for the trial court to
determine whether defendant is able to pay various fines, fees, and assessments. In
addition, the People argue that remand is necessary because the trial court failed to order
defendant to pay restitution and a restitution fine as to counts 1 and 2 and a criminal
conviction assessment as to count 2 only. The People also concede that the judgment
pertaining to the unpaid balance of the presentence report and booking fees should be
vacated.
We agree with the People’s positions, except for its concession as to the need for
remand and with respect to challenging the trial court’s error, if any, in failing to order
victim restitution or impose a restitution fine. We find the trial court did not err in
ordering fines, fees, and assessments without an ability to pay hearing. We further find
that the People forfeited their challenge to the restitution fine by failing to object in the
trial court. We agree that we may modify the judgment to reflect mandatory victim
restitution but decline to remand for a restitution hearing because both the People and
victim may address the amount of restitution by filing the appropriate motion in the trial
court. (See § 1202.46.)
We therefore modify the judgment to impose the mandatory $40 court operations
assessment and $30 criminal conviction assessment, increasing the total fine for count 2
to $110, and modify the judgment as to counts 1 and 2 to order defendant to pay direct
victim restitution in an amount to be determined by the probation department to the
3.
victim identified in the presentence report or, if the victim has received assistance from
the California Victim Compensation Board, to be deposited into the Restitution Fund.
We vacate any portion of the judgment requiring payment of any balance of the
$750 presentence report fee and $108.19 booking fee unpaid as of July 1, 2021, and
affirm the judgment as modified in all other respects.
PROCEDURAL BACKGROUND
Originally charged by complaint, defendant was held to answer after his
preliminary hearing on July 17, 2015. The Madera County District Attorney filed an
amended information on September 27, 2017, charging defendant with infliction of
corporal injury on a cohabitant (§ 273.5, subd. (a); count 1) and misdemeanor vandalism
(§ 594, subd. (a); count 2). As to count 1, the amended information alleged six prior
“strike” convictions within the meaning of the Three Strikes law (§ 667, subds. (b)–(i)).
Defendant pled not guilty to the charges and denied all allegations in the amended
information.
After an eight-day trial, a jury convicted defendant of both counts on May 3, 2018.
That same day, defendant waived his right to a jury trial regarding his prior convictions,
and the court found true the prior serious felony conviction allegations.
The trial court sentenced defendant on September 14, 2018, after hearing
testimony and argument on his invitation to strike his prior serious felony convictions.
The trial court partially granted defendant’s invitation by striking two convictions arising
from the same act in his 1988 case. The trial court denied probation and sentenced
defendant to a total term of 25 years to life on count 1. Also, as to count 1, the trial court
ordered defendant to pay $890 in fines, fees, and assessments. The trial court ordered a
separate $40 fine pursuant to section 1202.5.
This timely appeal followed on September 20, 2018.
4.
FACTS
I. People’s Case
A. Phyllis R.’s Testimony
Phyllis R. testified she worked at Mule Creek State Prison, which is a two- and
one-half-hour commute from her house. She arrived home on June 25, 2015, at
approximately 4:30 p.m., after stopping at a grocery store. Defendant, her boyfriend of
four years, lived with her and was home when she arrived. After putting the groceries
away, she took a nap. Awaking at approximately 10:00 p.m., she noticed defendant had
taken her truck. He did not come home before she went to bed.
About 3:00 a.m. or 4:00 a.m., Phyllis awoke to loud music and heard her truck
outside. She went outside and found defendant was drunk, angry, and slurring his
speech. Defendant followed her back into the house as she attempted to calm him down.
He acted jealous, yelling and cussing, and accused her of doing something bad. She led
him into the bedroom, telling him not to be upset and that they would talk in the morning.
Defendant calmed down and they went to bed. Five or ten minutes later, defendant
grabbed her by the hair and dragged her off the bed. He then threw her against the
dresser, continued to hold onto her hair, and they both fell on the bed. She tried to kick
him off, but he still had her by the hair. Defendant hit her in the face and, when she
turned her head, hit her in the back of the head. Defendant then let go of her and started
calling her names and accusing her of going out with other people. He was still angry
and went outside.
Phyllis found her phone and immediately called 911. She was angry because
defendant had hit her and was out of control. At that time, she heard defendant go out the
front door and then the sounds of glass breaking and her planters hitting the window.
Defendant damaged four planters. After the police came, Phyllis saw that her car’s
5.
windshield was broken and the side mirrors were knocked off. Her car had been fine
when she drove home from work the day before.
Phyllis testified that defendant had blackened her eye and it stayed bruised for one
and one-half weeks, causing her to miss three days of work. She also had bruises on her
arms and a bump on her leg.
B. The 911 Call
A police dispatcher authenticated the 911 call that Phyllis made, and the
prosecutor played the call for the jury. Phyllis’s testimony was consistent with the
statements she made to the dispatcher. During the call, defendant reentered the house and
could be heard on the recording yelling, “[W]ho are you talking to?” He said,
“(Unintelligible)…your boyfriend? Girlfriend? Well, fuck you! You hear me? I’m her
boyfriend!” Before leaving the house again, he yelled, “Fuck you and that motherfucker,
then.”
C. Defendant’s Statements to Police
Officer David Herspring responded to defendant’s residence. He saw the broken
pots and planters in front of the residence, a broken garage window with soil and pots
nearby, and a broken pot on the hood of a vehicle with a broken windshield. He also saw
defendant lying on the sidewalk near the residence. Defendant appeared to be asleep but
easily woke when Herspring asked defendant if he was okay.
After initially contacting defendant, Herspring entered the residence and spoke
with Phyllis. He observed that Phyllis had a black eye and a bruise on her chin. The
bedroom appeared disheveled and the officer observed items on the floor that had been
knocked from the dresser.
Officer Herspring recontacted defendant outside the residence. He believed that
defendant was intoxicated as he was slurring words, unsteady on his feet, and smelled of
alcohol. Herspring identified the recording of his contact with defendant that morning,
6.
and the recording was played for the jury. In pertinent part, defendant answered
Herspring’s questions as follows:
“[Herspring]: How much have you had to drink tonight?
“[Defendant]: Uh, two, uh, one forty ounce, and uh, I had a pint, of, uh,
tequila. [¶] … [¶]
“[Herspring]: Okay, well, when you came home, what happened?
“[Defendant]: I just got here.
“[Herspring]: Okay, how did all the planters get broken?
“[Defendant]: Because, uh, cuz she wouldn’t open this fucking door.
“[Herspring]: Okay, how come she’s got a big black eye on her face?
“[Defendant]: What?
“[Herspring]: Do you remember being in her bedroom throwing her around
and punching her in the head?
“[Defendant]: I didn’t get in the house yet.
“[Herspring]: You what?
“[Defendant]: I didn’t get into the house yet. I didn’t, I…
“[Herspring]: Oh, you were in the house. Our dispatcher could hear you in
the house.
“[Defendant]: I wasn’t in the house, I was outside, hitting the pots.
“[Herspring]: So, so, she, she broke, she blackened her own eye tonight?
You didn’t blacken her eye?
“[Defendant]: No. [¶] … [¶]
“[Defendant]:No, I do not hit her. I did not, I didn’t (inaudible) get in the
house.
“[Herspring]: Okay.
“[Defendant]: I was outside with the pots and the plants.
“[Herspring]: So you threw the pots and plants?
7.
“[Defendant]: (Inaudible) ….right here. Right here. She wouldn’t let me
inside the house.
“[Herspring]: Okay. So you never made it in the house?
“[Defendant]: No.
“[Herspring]: Okay. The big ol’ shiner that she’s got that looks real fresh,
right in her face, it’s nice and deep purple, you didn’t do that?
“[Defendant]: No.
“[Herspring]: Cuz you never made it in the house.
“[Defendant]: No.”
D. Jail Calls Between Defendant and Phyllis
The prosecutor introduced several calls between defendant and Phyllis into
evidence. During one call on June 28, 2015, Phyllis said, “Senter you wanna see - you
know what you did to my face?” Defendant replied, “Babe - babe - I… [¶] … [¶]
…blacked - babe - babe - I didn’t do that.” Phyllis replied, “Senter. Don’t you blame me
at all. I did nothing to you Senter.” Defendant replied, “I know.” Later in the call,
Phyllis said, “Senter. I did nothing to you. I didn’t deserve to get hit like a man.”
Defendant replied, “No. No you don’t.” During one point in the call, Phyllis asked,
“What about what you’re costin’ me?” Defendant replied, “I know I cost you
everything.” After she described her black eye, defendant responded, “Fuck. I did not do
… [¶] … [¶] that wasn’t me.” When asked who was responsible, defendant replied, “It’s
that person that shoulda went to, uh, anger management.”
During the same call, defendant described some earlier fights between he and
Phyllis:
“[Defendant]: … How many times - we went through - I (unintelligible) -
you got on me like - like beat the fuck outa me? Did I - did I say anything?
No. I toed up with you. [¶] … [¶]
“[Defendant]: … I went with you. I didn’t call the police on you. I didn’t
go and do nothing with you. I didn’t even leave you. Even though I knew
that I’m being disrespected for myself with my girl beatin’ on me.
8.
“[Phyllis]: I didn’t…
“[Defendant]: Slappin’ on me - punch me in the face.
“[Phyllis]: I did not do anything to you Senter. I did not.
“[Defendant]: Put me in the hospital.”
Additionally, Phyllis told the defendant, “There was no excuse for you to come
home and start beating me down,” and defendant replied, “I fucked up. No - no, I didn’t
beat you down. Don’t say that - don’t say that.” Phyllis told defendant, “even that night
… I tried calmin’ you down.” Defendant later told her, “I don’t even know… [¶] … [¶]
…how I got home. I don’t even know how I got to the jailhouse. See?”
During a call between Phyllis and defendant on July 1, 2015, defendant
acknowledged, “I know I did it - I know - I know I did it - I know I did it.” In response to
Phyllis stating that she did not deserve being hit, defendant replied, “I know … I know
and I’m sorry -- okay?” During the conversation concerning the incident, defendant said,
“You know I - you know I don’t mean to. You know I never do that,” and acknowledged
he needed to stop drinking. Defendant said, “I’m sorry. I’m sorry so bad,” when Phyllis
reminded him of her black eye. He also acknowledged, “I will change (unintelligible)
shit that happened and I was wrong for that. I was wrong for that.”
During an additional call on July 28, 2015, regarding the incident defendant
explained:
“And I confess. And I - I was using. I was in denial. I was using
behind your back. And I became a liar, a liar and a liar, a thief. I messed
up. …I was taking that jealousy to extreme, you know,… I can’t handle
your job choice. You know? That jealousy got the best of me. … I
messed up. I crossed that line and I – I can’t (unintelligible) over and over
what I did to you.… Something you know I never thought I’d do. And I
did it. And you know to this day I don’t remember none of it.”
9.
II. Defense Case
A. Defendant’s Testimony
Defendant testified that on the night before the incident, he had taken Phyllis’s
truck from her driveway. He also took her bank card and withdrew $40 that he used to
purchase marijuana, forty ounces of Old English malt liquor, and a bottle of tequila.
Defendant believed that Phyllis would be angry when he returned home. They had
numerous arguments in the four years they had been dating, mostly because he was
jealous and would ask her about text messages or phone calls that she received. During
these fights, she would call him names, slap him, and hit him.
Defendant admitted that he had been convicted of forcible rape and kidnapping,
but he had never hit Phyllis before. Defendant had observed his father hit his mother
while growing up and resolved to never hit his girlfriend. During their fights, Phyllis
would punch him, bruise his lip, and one time she hit him over the head with his cane
and, when it broke, she used the broken end to stab him in the shoulder. He received
treatment at an emergency room for a bruised shoulder after the cane incident. When
asked if he had hit Phyllis the morning of June 26, 2015, defendant responded, “Well, to
this day I still don’t believe it, but I did, you know.”
The prosecutor asked defendant if he remembered what happened. He replied,
“Well, not clearly but after many years of going over statements and, you know, in the
reports, yes.” Defendant admitted that he had been drinking and that affected his ability
to recall. He also acknowledged telling Phyllis that he did not remember driving her
truck or being transported to jail. When asked about his statements to Herspring,
defendant acknowledged he told Herspring that he did not go into the house. At that
time, he did not remember stepping inside, although he now recalled that he went inside
10.
the house. When asked if he remembered accusing Phyllis of having an affair, defendant
responded:
“Well, that was after I laid down. And -- and then in my sleep, in
my sleep. I -- it was a dream that she cheated on me. And I snapped. I got
up. And -- and I accused her, you know, [of] having an affair.”
B. Phyllis’s Testimony for Defense
Phyllis acknowledged that she had, in the past, hit defendant in the face, called
him names, and hit him with a cane. They had many arguments leading up to the
incident due to his jealously, and she was tired of it, but defendant had not hit her before
that morning.
DISCUSSION
I. The trial court did not abuse its discretion by excluding testimony from
defendant’s expert and denying defendant’s resulting motion for mistrial.
A. Background
1. Motions in Limine
a) April 16, 2018 Motions In Limine Hearing
The prosecutor filed a supplemental motion in limine on April 16, 2018, to
exclude defendant’s expert witness, Dr. John Hamel, Ph.D., who was to testify regarding
self-defense. The prosecutor argued that the evidence did not show defendant was acting
in self-defense and, therefore, the expert was not relevant unless defendant testified to
facts showing he acted in self-defense. The prosecutor further argued that the expert
could not testify to any statements made by defendant as they would be hearsay.
The trial court addressed the parties’ motions in limine that same day. When asked
by the trial court, defense counsel affirmed that he would be offering evidence of self-
11.
defense, advising the court that the record contained evidence that Phyllis had struck
defendant in the past. Counsel explained his theory of the defense:
“[U]nder intimate partner battering, the self-defense takes -- occurs
when the, in this case, [defendant], learns to recognize the escalating
patterns of -- of abuse. And that would be In [r]e Walker,[2] Your Honor.
“Additionally, there was -- that [morning] there was an argument
which escalated the combination of those three things draws an inference
that there is sufficient evidence to create reasonable doubt that the People
need to overcome regarding [defendant] acting in self-defense.”
Counsel advised the court that the expert would be interviewing defendant and relying
upon statements in that interview for his testimony. The court ruled, “All right. At this
time, the Court’s not going to allow the expert to testify unless and until we have further
hearings on the matter.” Regarding the prosecutor’s objections to the expert testifying as
to defendant’s statements, the court ruled, “And I tend to agree with you, that the
statements that evidence has to come in in a form other than hearsay.” The court
scheduled a further hearing for April 20, 2018, but this was later moved to April 23,
2018.
b) April 23, 2018 Evidence Code Section 402 Hearing
Defendant filed a motion in limine to admit the testimony of his expert on intimate
partner battering on April 23, 2018. At the hearing on that day, the court asked counsel
to explain the relevance of intimate partner battering to defendant’s case. Counsel
explained that defendant had been battered for the last four years and Phyllis would
provide testimony that she had battered defendant multiple times in the past, including an
incident where defendant was required to seek medical treatment as a result. The
discussion continued:
“THE COURT: And how does that relate to the incident that’s part
of the charges in this case?
2 In re Walker (2007) 147 Cal.App.4th 533 (In re Walker).
12.
“[COUNSEL]: In this matter, Your Honor, there was an argument
that escalated preceding the incident. Um, when reviewing In [r]e Walker,
as I talked about at the last hearing on this, or when we discussed this last,
it says, ‘the admission of expert testimony is relevant to the claims of self-
defense because such expert testimony can support a defendant’s theory of
justifiable homicide in true self-defense by enabling the jury to find the
battered woman or man is particularly able to predict accurately the likely
extent of violence in any attack.’ And so due to the --
“THE COURT: Well --
“[COUNSEL]: -- escalating argument that [morning] … our
position is [defendant] was able to predict the attack that was forthcoming.
“THE COURT: Okay. So there was no attack, it was anticipated
based upon his experience?
“[COUNSEL]: Yes, Your Honor, but that’s in -- that’s in
accordance with In [r]e Walker of the theory of this defense.
“THE COURT: Doesn’t self-defense require an actual act?
“[COUNSEL]: Your Honor, um --
“THE COURT: Anticipation of one?
“[COUNSEL]: And this – and in this particular self-defense based
on the -- excuse me, one moment, your Honor.
“Um, based on the supplemental instruction included with
[CALCRIM No. ]3470, ‘someone who has been threatened or harmed by a
person in the past is justifiable in acting more quickly or taking greater self-
defense measures against that person.’ ”
The prosecutor objected, arguing that defendant could not establish the facts of the
incident that night by relying on past violence alone—defendant needed to testify that he
believed he was in imminent danger when he used force that night. The court asked
whether defendant intended to testify, and counsel responded that it had not been
decided. The court asked counsel to explain how the defense would prove that defendant
believed he was in imminent danger if he did not testify. The court questioned whether
the expert testimony and the past history of violence could establish defendant’s state of
mind for self-defense without his testimony, expressing concern that the jury would be
speculating as to defendant’s state of mind.
13.
To assist the court, defense counsel provided Dr. Hamel’s report. According to
the report, defendant remembered arguing with Phyllis while “in a ‘dreamlike state’ ”
under the influence of drugs and alcohol and admitted to punching her and pulling her
hair. The report noted defendant made the following statements to a previous doctor who
examined him: “ ‘Drugs and alcohol had an effect, but…holding it in…for four years.
Physically abusing me, getting mad, cussing, hitting me in the chest, the side…Get pissed
off.’ ” Dr. Hamel concluded that “[i]n the midst of an escalating argument rather than
with premeditation, [defendant] ‘snapped,’ triggered by fears of once again being rejected
or abused, physically and emotionally.” After reviewing the report, the court granted the
motion to exclude Dr. Hamel’s testimony until defendant testified:
“THE COURT: I’ve reviewed the forensic report provided by
Dr. Hamel. Also read the investigative report. It appears to the Court
there’s still something missing and that is the state of mind of the defendant
at the time. So at this point no one knows if he’s going to testify. Unless
and until we come to that point, the Court’s not going to allow the expert to
testify. There’s no basis for it. He’s just asking the jury to speculate as to
what happened, why it happened. If the defense can provide me with a case
where an expert testified and there was not testimony from the individual
who was seeking the self-defense claim, I’d be happy to look at that. At
this point, I’m not aware of any.”
2. May 1, 2018 Expert Testimony Discussion
On May 1, 2018, prior to presenting defendant’s case, counsel inquired regarding
whether his expert would be permitted to testify. The court found that Dr. Hamel was
qualified and the hearsay problem would be resolved if defendant testified.
3. Discussion After Defense Case on May 2, 2018
On May 2, 2018, defendant and Phyllis testified as part of defendant’s case.
During a bench conference following Phyllis’s testimony, the prosecutor renewed his
motion to exclude Dr. Hamel’s testimony. Pointing out that defendant never testified that
he believed he was in immediate danger when he hit Phyllis, the prosecutor argued that
14.
defendant could not rely on self-defense and the expert testimony was not relevant as it
related only to self-defense. The jury was excused for a hearing on the issue.
The prosecutor argued that defendant failed to testify that he believed he needed to
use self-defense and the facts did not establish that defendant was in imminent danger.
Defense counsel argued that defendant’s belief that Phyllis would be angry that he took
her car, in combination with her past history of violence, was sufficient for self-defense
where the expert could testify that a victim of abuse becomes sensitive to predicting
physical attack. The court ruled:
“There are certain things that have to be established before the
expert would be allowed to testify. And the Court is inclined to agree with
the People in this matter. I don’t think there’s been any testimony
regarding self-defense by [ ] defendant or by [Phyllis]. The fact that
someone was struck in the past during an argument, doesn’t indicate
anything regarding self-defense. [¶] … [B]ut there would seem to be more
required before the expert can come in and opine that this was a matter of
self-defense. [¶] So I’m going to deny the request to have the expert
testimony. It’s not relevant.”
Attempting to change the ruling, defense counsel elaborated that the expert could explain
that someone who has been abused is able to predict future violence by the abuser to
demonstrate why defendant’s actions were reasonable. The court responded, “The only
evidence I’ve heard so far is that he came home. He got angry. He accused her doing
things. He then begins to physically abuse her. I don’t -- I haven’t heard anything about
self-defense.” After the prosecutor’s argument, the following discussion occurred:
“THE COURT: … And correct me if I’m wrong, the testimony is
things were calmed down. They’re both laying down, and then he jumps
up and starts attacking her. [¶] … [¶]
“THE COURT: Okay. Well, she’s laying down asleep presumably.
He gets up and starts attacking her. You’re arguing that that’s self-defense?
“[COUNSEL]: Yes, Your Honor. When -- you read…
“THE COURT: He anticipated she was going to wake up any
second and start hitting him?
“[COUNSEL]: Possibly, Your Honor.
15.
“THE COURT: Well --
“[COUNSEL]: Based on --
“THE COURT: -- certainly possible but that’s not the evidence.…
“[COUNSEL]: But based on -- but based on the pattern that has
occurred, it’s probable.
“THE COURT: I haven’t heard any pattern about her waking up
and attacking the defendant.
“[COUNSEL]: No, but there’s patterns of escalating arguing before
the domestic violence occurred.
“THE COURT: Escalating yes, but she was asleep. They were both
asleep. [¶] … [¶]
“THE COURT: All right. I just don’t see it. It does not appear to
the Court to be relevant.”
4. Defense Moves to Recall Defendant to Testify
After granting the prosecutor’s motion to exclude Dr. Hamel’s testimony, the
court asked to review the jury instructions with counsel. Before doing so, defense
counsel asked for permission to recall defendant, advising that defendant “provided
[counsel] a clearer picture of what occurred.” The court indicated that defendant had the
opportunity to testify and it would not permit defense to reopen unless there was
something new. Counsel advised that the information was an elaboration of the events of
June 26, 2015, though not anything new, and an attempt to establish a basis for the expert
testimony based upon the court’s ruling. The court did not see a basis for reopening as
“[defendant] had plenty of opportunity to do this.”
5. Jury Instruction Conference
Thereafter, the court expressed its intent not to instruct the jury on self-defense as
no factual basis had been established. The prosecutor requested the instruction because
the jury had been asked about it during voir dire and otherwise the jury might speculate
on whether self-defense was applicable. Defense counsel submitted on the request to
provide the self-defense instruction to the jury and the court agreed to include it in the
final instructions.
16.
6. Jury Instructions
After the instruction conference, the defense rested. The trial court instructed the
jury that to prove defendant guilty of the crime of inflicting injury on his cohabitant that
resulted in a traumatic condition, “the People must prove that, one, the defendant
willfully and unlawfully inflicted a physical injury on his cohabitant. Two, the injury
inflicted by the defendant resulted in a traumatic condition. And three, the defendant did
not act in self-defense.”
The jury was also instructed on self-defense pursuant to CALCRIM No. 3470.
Defendant would not be guilty of the crime if he (1) “reasonably believed that he was in
imminent danger of suffering bodily injury, or was in imminent danger of being touched
unlawfully”; (2) “reasonably believed that the immediate use of force was necessary to
defend against that danger”; and (3) “used no more force than was reasonably necessary
to defend against that danger.” The instruction cautioned that “[b]elief in future harm is
not sufficient no matter how great or how likely the harm [was] believed to be,” the belief
must have been reasonable, defendant must have acted based on that belief, and the force
must have been no more than a reasonable person would believe is necessary in the same
situation.
In considering the reasonableness of defendant’s belief and conduct, the jury was
instructed to consider all circumstances known to defendant. If the jury found that
Phyllis threatened or harmed defendant in the past, it could consider that information in
deciding whether defendant’s conduct and beliefs were reasonable and whether someone
who has been threatened or harmed by a person in the past is justified in acting more
quickly or taking greater self-defense measures against that person.
7. Motion for Mistrial
Prior to closing arguments on May 3, 2018, defense counsel requested a mistrial
based upon the court’s exclusion of Dr. Hamel’s expert testimony. The court denied the
17.
motion, recognizing that it had repeatedly advised defendant that a foundation was
needed and believed such a foundation would be laid when defendant testified:
“[B]ut there was no testimony regarding the self-defense issue
whatsoever. Other than in the past he had been battered by [Phyllis] in this
matter. There is no testimony regarding the -- the incident itself being in
any fear, any concern about being battered. The Court’s recollection of the
testimony was that they had some argument, some confrontation and that it
all calmed down. They went to bed. The defendant woke up and
immediately began to -- incite an incident again and to batter and cause
traumatic injury to [Phyllis] in this matter.”
The court denied the motion for mistrial, ruling that an expert could not testify as
to defendant’s state of mind unless there was evidence presented that defendant feared
Phyllis would injure him.
8. Closing Argument
Defense counsel argued that defendant acted in self-defense. Counsel argued that
Phyllis testified that she was attempting to calm defendant down but that her response to
defendant’s jealousy was to degrade, belittle, hit, and strike him with a cane. Counsel
asked the jury to infer that Phyllis behaved the same way the night of the incident as well
and that defendant “snapped” because he was tired of being belittled and hit and “said no
more.” Counsel argued that defendant knew Phyllis would be mad when he returned
home, he knew that she hit him in the past when she was mad, and that defendant
reasonably used force that night because she had used it against him in the past. Because
Phyllis had struck defendant with a cane in the past, his striking her with a fist was
reasonable by comparison with what he suffered previously.
Defense counsel argued that Phyllis’s testimony that she was attempting to calm
defendant was the equivalent of her responses during other arguments where she had
struck him and, therefore, defendant must have believed she would hit him during this
dispute. Because he had been harmed in the past, defendant was justified in acting
quickly to defend himself.
18.
B. No substantial evidence showed defendant acted in self-defense and,
therefore, the trial court properly exercised its discretion to exclude
defendant’s expert testimony on intimate partner battering as irrelevant.
Defendant argues that the trial court deprived him of his right to present a
complete defense under the due process clause of the Fourteenth Amendment to the
United States Constitution by excluding his proffered expert testimony as to intimate
partner battering to support his claim of self-defense and, therefore, should have granted
his motion for mistrial. As part of this argument, defendant claims that the trial court
abused its discretion in denying his request to reopen his testimony to lay the necessary
foundation for self-defense. The People respond that defendant failed to testify that he
hit his girlfriend because he feared she would injure him and, therefore, the trial court
properly found the proffered expert testimony to be irrelevant. Because defendant had an
opportunity to, and did, testify, the trial court did not abuse its discretion in denying the
request to recall defendant to the stand. We agree with the People.
1. Law and Standard of Review
The trial court possesses wide discretion to admit or exclude expert testimony.
(People v. McDowell (2009) 54 Cal.4th 395, 426.) We will not reverse the trial court’s
ruling on expert testimony unless we find a manifest abuse of discretion. (People v.
McAlpin (1991) 53 Cal.3d 1289, 1299.) The trial court abuses its discretion if it exercises
it in an arbitrary, capricious, or patently absurd manner. (People v. Rodriguez (1999)
20 Cal.4th 1, 9–10.)
“A trial court should grant a mistrial only when a party’s chances of receiving a
fair trial have been irreparably damaged, and we use the deferential abuse of discretion
standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002)
29 Cal.4th 515, 555.) The basis for defendant’s mistrial motion was the exclusion of his
expert witness testimony and, therefore, our analysis is dependent upon whether the trial
court abused its discretion in so ruling.
19.
a) Intimate Partner Battering
Evidence Code section 1107, subdivision (a) provides that intimate partner
battering3 and its effects, including the nature and effect of physical, emotional, or mental
abuse on the beliefs, perceptions, or behavior of victims of domestic violence, is
admissible by either the prosecution or the defense. The proponent must establish a
foundation that such evidence is relevant and the expert witness has the proper
qualifications. (Evid. Code,§ 1107, subd. (b).) “Accordingly, a properly qualified expert
may testify to [intimate partner battering] when it is relevant to a contested issue at trial
other than whether a criminal defendant committed charged acts of domestic violence.”
(People v. Gadlin (2000) 78 Cal.App.4th 587, 592.)4
“[Intimate partner battering] ‘has been defined as “a series of common
characteristics that appear in [individuals] who are abused physically and psychologically
over an extended period of time by the dominant [partner] in their lives.” ’ ” (People v.
Humphrey (1996) 13 Cal.4th 1073, 1083–1084 (Humphrey).) Evidence of intimate
partner battering is relevant to establish self-defense, i.e., that the defendant actually and
reasonably believed in the need to defend against imminent harm. (Id. at pp. 1082,
1086.) In murder cases, it may also be relevant to establish “imperfect self-defense,” i.e.,
that the defendant actually believed in the need to defend against imminent death or
serious bodily injury, but the belief was objectively unreasonable. (Ibid.; see People v.
Aris (1989) 215 Cal.App.3d 1178, 1188 (Aris), disapproved on another ground in
Humphrey, at p. 1089.)
3 Previously referred to as “battered women’s syndrome,” the preferred terminology is now
“intimate partner battering.” (Evid. Code, § 1107, subd. (f); People v. Wright (2015)
242 Cal.App.4th 1461, 1492, fn. 11.)
4 We focus on the relevance issue, as there has been no challenge to the expert’s
qualifications and the trial court excluded the evidence based upon relevance.
20.
b) Self-defense
Defendant offered the expert testimony of intimate partner battering in support of
his claim of self-defense. “ ‘A person claiming self-defense is required to “prove his own
frame of mind,” and in so doing is “entitled to corroborate his testimony that he was in
fear for his life by proving the reasonableness of such fear.” ’ ” (People v. Minifie (1996)
13 Cal.4th 1055, 1065 (Minifie).) “ ‘To justify an act of self-defense for [an assault
charge under Penal Code section 245], the defendant must have an honest and reasonable
belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The
threat of bodily injury must be imminent (In re Christian S. (1994) 7 Cal.4th 768, 783),
and ‘… any right of self-defense is limited to the use of such force as is reasonable under
the circumstances.’ ” (Minifie, at pp. 1064–1065.)
2. Analysis
For expert testimony on intimate partner battering to be relevant, the evidence
must be sufficient to permit a jury to find that defendant honestly feared bodily injury
from Phyllis when he used force against her. The trial court did not abuse its discretion
in excluding the testimony given the lack of any evidence that defendant held such a
belief or that any such threat of injury was imminent.
a) Actual Belief in the Need to Defend Oneself
A jury will not be permitted to consider a defendant’s claim of self-defense unless
there is substantial evidence to support it. (People v. Simon (2016) 1 Cal.5th 98, 132
(Simon).) Substantial evidence is evidence sufficient to deserve consideration by a jury,
that is, evidence that a reasonable jury would find persuasive as opposed to speculative,
minimal, or insubstantial. (Ibid.) In Simon, the trial court declined to instruct the jury on
“imperfect self-defense,” described as a defendant’s actual but unreasonable belief that he
or she is in imminent danger. 5 (Simon, at p. 132.) Simon upheld the trial court’s ruling,
5 Perfect self-defense requires the actual and reasonable belief in the need to defend
oneself. Imperfect self-defense is not actually a defense. Because imperfect self-defense
21.
agreeing there was a lack of substantial evidence of the defendant’s “ ‘ “honest belief” ’ ”
for self-defense purposes. (Id. at p. 134.) Simon noted that there was no evidence that
the victim was the aggressor, the defendant failed to present evidence that he perceived a
threat from the victim, the defendant initiated the aggressive interactions, the victim was
not armed, and the defendant never told anyone that he acted out of fear. (Ibid.) Based
on the review of the evidence, Simon also opined that “[b]ecause we conclude there was
not substantial evidence supporting [the defendant’s] actual belief that he was in
imminent danger of great bodily injury or death, the trial court would not have erred had
it likewise refused to instruct on complete self-defense.” (Ibid. [“Further, just because
the court permitted instructions on perfect self-defense does not mean that substantial
evidence supported [it] … it would not have been error for the trial court to have denied
perfect self-defense instructions … because no substantial evidence supported such a
defense.”], citing with approval People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.)6
The facts of Simon are remarkably similar to the facts of defendant’s case. The
trial evidence did not show that Phyllis ever engaged in aggressive conduct that morning,
defendant never once expressed he had an actual fear of harm when attacking his
girlfriend (Phyllis) in either his prior statements or his trial testimony, the evidence
reduces an intentional, unlawful killing from murder to voluntary manslaughter by negating the
element of malice; this form of voluntary manslaughter is considered a lesser and necessarily
included offense of murder. (Simon, supra, 1 Cal.5th at p. 132.) However, since both legal
principles require an actual belief in the need to defend, cases interpreting that element are
instructive on perfect self-defense, which is at issue in this case. (People v. Viramontes (2001)
93 Cal.App.4th 1256, 1262 [“The subjective elements of self-defense and imperfect self-defense
are identical. Under each theory, the [defendant] must actually believe in the need to defend
himself against imminent peril to life or great bodily injury.”].)
6 The trial court here did instruct on self-defense, even though it excluded testimony on
intimate partner battering, because the prosecutor requested the instruction so that the jury would
know self-defense was not applicable, given it was extensively discussed during voir dire.
However, that fact does not affect our analysis given that in Simon the Supreme Court upheld the
trial court’s ruling not to instruct on imperfect self-defense while it instructed the jury on perfect
self-defense. (Simon, supra, 1 Cal.5th at p. 134.)
22.
showed that defendant initiated the aggressive interaction, and defendant never told
anyone he acted out of fear. 7 (See Simon, supra, 1 Cal.5th at p. 134.)
When Phyllis described defendant’s attack on her, she described defendant as
angry and drunk. She never testified that she ever struck or threatened defendant after he
arrived home that morning. In fact, she testified that she was able to calm defendant and
they both went to bed. Phyllis had been sleeping until defendant woke and attacked her.
During Phyllis’s conversation with the 911 dispatcher, defendant can be heard yelling at
the dispatcher, expressing anger and jealousy at what he believed to be a romantic partner
of Phyllis’s. Phyllis’s testimony provides no evidence that defendant feared her or that
he attacked her to protect himself.
Furthermore, defendant’s claim of self-defense is undercut by evidence that he
went out of the residence and threw planters at Phyllis’s vehicle, breaking the windshield
and side mirrors. This conduct results from anger and supports the evidence that
defendant attacked Phyllis because he was angry at her and not because he feared harm
from her.
Defendant’s statements to Officer Herspring lend no support to a claim of self-
defense. Defendant never claimed he attacked Phyllis to defend himself. He told
Herspring that he broke the planters because Phyllis would not let him inside the house.
He never mentioned that she had threatened or assaulted him and denied that he had
entered the residence or assaulted her.
During three telephone conversations, defendant and Phyllis discussed the
incident. Defendant never, during any of the three conversations, indicated that Phyllis
had threatened to harm him, harmed him, or that he feared she would harm him that
morning. Defendant never expressed any fear of Phyllis, nor did he attempt to justify his
7 According to Dr. Hamel’s report, defendant did not claim he hit Phyllis because he was
acting in self-defense or feared harm from Phyllis.
23.
actions as necessary to protect himself from her. Each time Phyllis told defendant that
she had done nothing to deserve the beating, defendant agreed with her. He did not
respond with any accusations indicating that Phyllis had been violent or threatening to
him the morning he hit her.
During the calls, defendant claimed his conduct was out of character and blamed
his actions on being drunk and angry. Defendant did not indicate that he was responding
to any actions or threats by Phyllis. While defendant did discuss prior episodes where
Phyllis had hit him, defendant did not justify his actions based upon how she treated him
in the past. Rather, defendant emphasized that he had not reported her to the police and
asked that she drop the current charges. He never indicated that her past episodes of
violence had anything to do with his actions in striking her. Defendant blamed his
conduct on his drug use and jealousy, and also claimed at times not to remember what
had happened.
At trial, defendant testified the night before the incident he had taken Phyllis’s
truck from her driveway and used her bank card to obtain cash to buy marijuana and
alcohol. While he expected she would be angry when he returned, defendant never
testified that Phyllis ever expressed anger that morning. He testified that she had struck
him during arguments in the past but did not testify she had struck him that morning or
that he feared she would strike him. When asked if he had hit Phyllis, defendant
responded, “Well, to this day I still don’t believe it, but I did, you know.” Defendant’s
response does not indicate that he feared injury from Phyllis, either based on the past
incidents or anything that transpired that morning. When asked if he remembered
expressing jealousy that morning, defendant explained his actions:
“Well, that was after I laid down. And -- and then in my sleep, in
my sleep, I -- it was a dream that she cheated on me. And I snapped. I got
up. And -- and I accused her, you know, [of] having an affair.”
24.
At no time did defendant indicate that Phyllis threatened or injured him, nor that he
feared she would do so.
b) Fear of Imminent Harm
“Moreover, for either perfect or imperfect self-defense, the fear must be of
imminent harm. ‘Fear of future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice. The defendant’s fear must be of
imminent danger to life or great bodily injury.’ ” (Humphrey, supra, 13 Cal.4th 1073 at
p. 1082.) All the surrounding circumstances, including prior assaults and threats, may be
considered in determining whether the accused perceived an imminent threat of death or
great bodily injury. (Id. at p. 1083.) Evidence Code section 1107, permitting admission
of expert testimony regarding intimate partner battering, does not modify the imminence
requirement.8
Describing incidents where he had been slapped, hit, and, on one occasion, struck
over the head and jabbed with a cane, defendant argues that this evidence was sufficient
to show that he honestly and reasonably believed himself to be in imminent harm when
he attacked Phyllis. While a history of threats and physical abuse might be relevant to
support a defendant’s honest belief that bodily injury was imminent, here there was no
evidence to indicate that defendant subjectively believed that he was in imminent danger
when he hit Phyllis. In fact, under questioning by the prosecutor, defendant attributed the
attack to a dream in which he thought the victim was cheating on him and he “snapped.”
He never indicated that he feared the sleeping victim would escalate her response if he
merely yelled at her. While defendant’s testimony, as well as that of Phyllis established
past abuse by Phyllis, it did not establish imminence, or that defendant believed harm was
imminent.
8 Evidence Code section 1107, subdivision (d) provides: “This section is intended as a rule
of evidence only and no substantive change affecting the Penal Code is intended.”
25.
Our Supreme Court has defined the “imminent harm” element of self-defense as
follows: “ ‘ “[T]he peril must appear to the defendant as immediate and present and not
prospective or even in the near future. An imminent peril is one that, from appearances,
must be instantly dealt with.” ’ ” (In re Christian S., supra, 7 Cal.4th at p. 783.) Clearly,
defendant could not reasonably believe he was required to defend himself with force in
this scenario. Rather, the evidence overwhelmingly suggests that defendant was simply
enraged.
In support of his argument that the evidence was sufficient to make the expert’s
testimony relevant, defendant cites to cases where the evidence showed that the
defendants actually believed harm was imminent even though a reasonable person would
not have believed it. (See In re Walker, supra, 147 Cal.App.4th at pp. 539–540, 552, 554
[“even though Walker testified the gun fired accidentally, she also testified that, because
of prior beatings by her husband and his threat to kill her earlier that day, she feared for
her life when he reentered their home on the evening of May 13, 1990”]; Humphrey,
supra, 13 Cal.4th at pp. 1078–1080 [the defendant testified that the victim threatened to
kill her the day before and fired a gun at her, and the defendant shot the victim believing
that he was reaching for a gun and intended to harm her].) These cases are unhelpful to
defendant because the evidence here does not demonstrate that he actually feared
imminent harm to himself or others from Phyllis.
We therefore conclude that the trial court did not abuse its discretion in excluding
expert testimony of intimate partner battering. The testimony would only have been
relevant to self-defense and, as we have shown, that defense was not supported by the
evidence and the trial court was not legally required to instruct on the defense under the
facts of this case.
Our analysis of the imminence requirement is further supported by Aris, supra,
215 Cal.App.3d at p. 1192. Aris upheld the trial court’s refusal to instruct on perfect self-
defense, holding that no reasonable jury could have concluded that “a sleeping victim
26.
presents an imminent danger of great bodily harm, especially when the defendant was
able to, and actually did, leave the bedroom, and subsequently returned to shoot him.”
(Id. at p. 1192, disapproved on other grounds in Humphrey, supra, 13 Cal.4th at
pp. 1088–1089.)9
Defendant argues that he was not required to testify that he acted in self-defense,
citing People v. Barton (1995) 12 Cal.4th 186. Defendant is correct that a jury should be
permitted to determine whether a defendant acted in self-defense even where the defense
might conflict with the defendant’s own testimony or where the defendant does not
testify. However, this principle only applies where the record contains substantial
evidence to support self-defense regardless of the defendant’s testimony. (See id., at
pp. 202–203 [finding sufficient evidence of intentional shooting in imperfect self-defense
despite the defendant’s assertion that the shooting was accidental]; In re Walker, supra,
147 Cal.App.4th at pp. 539–540, 554 [evidence from the defendant that the gun fired
accidentally and that, because of prior beatings by her husband and his threat to kill her
earlier that day, showed she feared for her life].)
In Barton and In re Walker, the defendants claimed that the shootings were
accidental. Each involved a factual scenario where there was substantial evidence in
support of self-defense, irrespective of the defendants’ testimony. Both of those
defendants were involved in altercations with the victims and the evidence established
factual circumstances that could support either accidental or intentional harm to the
victims while the defendants were defending themselves. Thus, the juries could reject the
defendants’ testimony that they fired their weapons accidentally, but still find that they
intentionally fired the guns in lawful self-defense. However, in this case, Phyllis was
9 Aris also held that evidence of intimate partner battering was not relevant to the objective
reasonableness of the defendant’s perceived need to defend. (Aris, supra, 215 Cal.App.3d at
p. 1192.) Humphrey disapproved Aris only to the extent it conflicted with its conclusion that
evidence of intimate partner battering is generally relevant to the reasonableness as well as the
subjective belief in the need for self-defense. (Humphrey, supra, 13 Cal.4th at pp. 1088–1089.)
27.
sleeping and there is no evidence that she either threatened to, or harmed, defendant.
Even if the jury discredited defendant’s testimony that he harmed the victim
intentionally, there is no substantial evidence that defendant acted in self-defense that
morning.
Defendant offered expert testimony that, as a battered person, he could predict the
extent of violence from Phyllis that would likely occur if she was angry with him when
he returned home and if they fought. But the evidence did not permit an inference that
Phyllis was angry and fought with defendant at the time she was attacked, or that
defendant could reasonably fear she would harm him because she was asleep. Under the
circumstances of the present case, it would have been sheer speculation for jurors to
assume that, even though there was no evidence defendant feared imminent harm from
Phyllis that morning, that she likely would be violent with defendant and defendant likely
would have feared she would cause him harm solely because Phyllis had been violent
with defendant in the past. “ ‘[S]peculation is not evidence, less still substantial
evidence.’ ” (People v. Dennis (1998) 17 Cal.4th 468, 508; see also People v. Babbitt
(1988) 45 Cal.3d 660, 682 [“ ‘The inference which [the] defendant sought to have drawn
from the [proffered evidence] is clearly speculative, and evidence which produces only
speculative inferences is irrelevant evidence.’ ” (First bracketed insertion added.)].)
Where, as here, there is no evidence showing that Phyllis posed a threat to defendant,
expert testimony only invites speculative rather than reasonable inferences as to
defendant’s state of mind. Thus, it cannot be said to have a tendency in reason to prove a
disputed material fact. (Evid. Code, § 210.)
In summation, to prove his or her own frame of mind to argue self-defense, a
defendant is entitled to corroborate testimony that he or she feared the infliction of
imminent bodily injury by proving the reasonableness of such fear (Minifie, supra,
13 Cal.4th at p. 1065) and likewise offer contextual evidence in the form of expert
testimony to help the jury understand the situation from his or her perspective
28.
(Humphrey, supra, 13 Cal.4th at p. 1086). But without direct or circumstantial evidence
suggesting the defendant was subjectively in fear at the time he attacked Phyllis,
corroborating testimony lacks foundation and cannot be admitted on its own to prove that
ultimate fact. The proffered expert testimony in this case supported only a speculative
inference that defendant might have feared harm from Phyllis. Absent some evidence
that defendant was subjectively fearful of such an attack or that such an attack was
imminent, evidence relevant only to the reasonableness of such fear was inadmissible to
support a theory of self-defense. The trial court did not abuse its discretion in excluding
the expert testimony.
c) Expert Testimony as Relevant to Defendant’s Credibility
Intimate partner battering expert testimony also may be relevant to the issue of a
defendant’s credibility to explain why a victim may have been abused but not have
reported it, why a victim may not have left the abuser, or why the victim may have
denied the abuse occurred. (See Humphrey, supra, 13 Cal.4th at p. 1087.) Defendant
argues that expert testimony was relevant to his credibility, although he never offered the
expert testimony for this purpose in the trial court. “To preserve an alleged error for
appeal, an offer of proof must inform the trial court of the ‘purpose, and relevance of the
excluded evidence .…’ (Evid. Code, § 354, subd. (a).) This is in accord with ‘the
general rule that questions relating to the admissibility of evidence will not be reviewed
on appeal in the absence of a specific and timely objection in the trial court on the ground
sought to be urged on appeal.’ ” (People v. Hill (1992) 3 Cal.4th 959, 989, overruled on
another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see
People v. Marks (2003) 31 Cal.4th 197, 228.)
In any event, in cases where expert testimony on intimate partner battering is
admitted in support of a defendant’s credibility, the defendants have testified that they
feared the victim would injure them. Intimate partner battering evidence speaks directly
29.
to both recantation and reunion by a domestic abuse victim, especially where such actions
are used to attack his or her credibility: “[Intimate partner battering] evidence was also
relevant to defendant’s credibility. It ‘would have assisted the jury in objectively
analyzing [defendant’s] claim of self-defense by dispelling many of the commonly held
misconceptions about battered [partners].’ ” (Humphrey, supra, 13 Cal.4th at p. 1087,
first & third bracketed insertions added.) Because there is no evidence that defendant
acted in self-defense, the jury did not need an explanation as to why defendant continued
his relationship with the victim despite the physical altercations. We find that the
proffered expert testimony would not have been relevant as to defendant’s credibility.
3. Harmless Error
Even if the trial court erred in excluding Dr. Hamel’s testimony that defendant was
a battered partner and how that affected defendant’s perception of danger at the time he
hit Phyllis, defendant was not prejudiced due to the particular circumstances of this case.
Intimate partner battering is relevant to show that defendant genuinely believed he
was in imminent danger of bodily injury. (See Aris, supra, 215 Cal.App.3d at p. 1199.)
However, where both the victim and the defendant’s own testimony established
conclusively that neither the victim nor their behavior indicated an imminent danger as
that term is defined by California law, it not reasonably probable that the expert’s
testimony would have convinced the jury that, nevertheless, the defendant honestly
perceived an imminent danger resulting in a different verdict. (Id. at pp. 1199–1200.)
In Aris, the defendant left the room while the victim was asleep, returned to the
room, thought it over, and then shot the victim while he was still sleeping. “No matter
what the expert testimony, it is not reasonably probable that a jury would find [the]
defendant actually believed she was in imminent danger.” (Aris, supra, 215 Cal.App.3d
at p. 1200.) As in Aris, defendant attacked his sleeping girlfriend. In addition, defendant
never testified that he feared any attack from Phyllis when he woke and hit her. To the
contrary, defendant testified that he dreamed Phyllis had been cheating on him and he
30.
snapped. We find that a different verdict was not reasonably probable even if the
excluded testimony had been admitted. (See Evid. Code, § 354; People v. Watson (1956)
46 Cal.2d 818, 836.)
C. The trial court did not abuse its discretion by denying defendant’s motion
to recall himself to supplement his testimony.
After the court granted the prosecutor’s motion to exclude Dr. Hamel’s testimony
and addressed jury instructions, outside the presence of the jury defense counsel asked for
permission to recall defendant, advising that defendant “provided [counsel] a clearer
picture of what occurred that evening.” The trial court denied the request, characterizing
it as a motion to reopen. However, defendant had not yet rested his case and did so only
after trial reconvened in the presence of the jury. Thus, while the parties characterize this
as a motion to reopen, we find it more properly analyzed as a motion to recall a witness.
In either case, the court’s denial of defendant’s motion to recall himself is reviewed under
the abuse of discretion standard. (People v. Tafoya (2007) 42 Cal.4th 147, 175–176.)
The trial court’s determination will be upheld unless it falls outside the bounds of reason.
(People v. Osband (1996) 13 Cal.4th 622, 666.) We find no abuse of discretion here.
“A witness once examined cannot be reexamined as to the same matter without
leave of the court, but he may be reexamined as to any new matter upon which he has
been examined by another party to the action. Leave may be granted or withheld in the
court’s discretion.” (Evid. Code, § 774.)
When defense counsel moved to recall defendant as a witness, the trial court
indicated that it would permit it if there was something “new.” Counsel advised that the
information was “further elaboration on the June 26th incident,” and an attempt to
establish a basis for the expert testimony based upon the court’s ruling. The court did not
see a basis for reopening as “[defendant] had plenty of opportunity to do this.”
Almost monthly, September 2016 to March 2018, defense counsel requested
continuances of either the trial setting or the trial, advising the court that additional time
31.
was needed for investigation and consultation with an expert. The trial court also
discussed the foundation needed to admit the expert testimony on April 16, April 23,
May 1, and May 2, 2018. The record reflects that defendant had a fair opportunity to
testify. There were no limitations. Defendant testified that he woke up believing Phyllis
had cheated on him, snapped, and attacked her.
Given the record, we cannot find that the trial court’s denial of defendant’s motion
to recall himself to elaborate on his testimony was an abuse of discretion.
D. Defendant’s claim of ineffective assistance of counsel cannot be reviewed
on this record.
Defendant argues that his trial counsel was ineffective in failing to elicit from him
the testimony needed to lay the foundation for his expert, prejudicing him by leaving him
without a defense. We conclude that the record is not sufficient to permit us to evaluate
this claim.
“In order to establish a claim for ineffective assistance of counsel, a defendant
must show that his or her counsel’s performance was deficient and that the defendant
suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016)
2 Cal.5th 181, 198 (Mickel), citing Strickland v. Washington (1984) 466 U.S. 668, 687–
692.) “To demonstrate deficient performance, defendant bears the burden of showing
that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness …
under prevailing professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice,
defendant bears the burden of showing a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different.”
(Mickel, at p. 198.)
“[C]ertain practical constraints make it more difficult to address ineffective
assistance claims on direct appeal rather than in the context of a habeas corpus
proceeding.” (Mickel, supra, 2 Cal.5th at p. 198.) “The record on appeal may not
explain why counsel chose to act as he or she did. Under those circumstances, a
32.
reviewing court has no basis on which to determine whether counsel had a legitimate
reason for making a particular decision, or whether counsel’s actions or failure to take
certain actions were objectively unreasonable.” (Ibid.) “Moreover, we begin with the
presumption that counsel’s actions fall within the broad range of reasonableness, and
afford ‘great deference to counsel’s tactical decisions.’ [Citation.] Accordingly, [the
California Supreme Court] ha[s] characterized defendant’s burden as ‘difficult to carry on
direct appeal,’ as a reviewing court will reverse a conviction based on ineffective
assistance of counsel on direct appeal only if there is affirmative evidence that counsel
had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.” (Ibid.)
Defendant’s claims of prejudice and ineffective assistance both rely on a single
premise—that defendant hit his girlfriend in self-defense. Absent any affirmative
evidence that defendant did actually fear imminent harm from his girlfriend, we cannot
conclude that counsel was ineffective in failing to elicit such testimony. The record
before us does not reveal why defense counsel failed to ask defendant if he feared harm
from Phyllis or why he hit her. On this record, it is possible that defendant did not
remember what he did because he was drunk or, did in fact, hit Phyllis because he was
angry, drunk, and jealous and not in defense of himself. If true, counsel would have had
strategic reasons for not directly asking defendant if he feared Phyllis would imminently
harm him.
Absent any affirmative evidence that there was no rational tactical purpose for
counsel’s forbearance, “it would be inappropriate for us to address defendant’s
ineffectiveness claim on direct appeal.” (Mickel, supra, 2 Cal.5th at p. 200.)
II. The trial court correctly instructed the jury regarding consciousness of guilt and
was not required to sua sponte instruct on voluntary intoxication.
A. Background
The court conducted a jury instruction conference on May 2, 2018. During the
conference, the prosecutor requested the jury be instructed with CALCRIM No. 362,
33.
“Consciousness of Guilt: False Statements.” The court indicated that it intended to so
instruct based upon statements defendant made to Officer Herspring before defendant
was arrested in which he denied entering the house and injuring Phyllis.
When asked if the defense objected, defense counsel responded, “Yes, Your
Honor. I -- my only argument would be that as he -- I mean -- no, Your Honor.” At the
conclusion of the conference, the court asked, “[A]ny instructions the Court’s giving that
defense objects to?” Defense counsel responded, “No, Your Honor.” The court then
asked, “[A]ny instructions you’ve requested that the Court’s not going to -- the Court’s
indicated it’s not giving that you’d like to be heard on?” Defense counsel responded,
“No, Your Honor.”
The court instructed the jury as follows:
“If the defendant made a false or misleading statement before his
trial -- I’m sorry, before this trial, relating to the charged crime, knowing
the statement was false or intending to mislead that conduct may show he
was aware of his guilt of the crime and you may consider it in determining
his guilt. If you conclude that the defendant made the statement, it is up to
you to decide its meaning and importance. However, the evidence that the
defendant made such a statement cannot prove guilt by itself.”
During closing argument, defense counsel explained defendant’s statements to
Officer Herspring:
“And then they said that [defendant] lied to the cop that night.
Officer woke [defendant] up, he was drunk. Wasn’t sure what was going
on and denied it. And then he testified in court. He told you what
happened that night.”
B. Standard of Review
Defendant did not object to instructing the jury with CALCRIM No. 362, nor
request that the instruction be clarified with reference to the effect of voluntary
intoxication on whether defendant knew his statement was false or misleading.
Generally, the burden of requesting supplemental or clarifying instructions falls on the
defendant, and he or she may not “complain on appeal that an instruction correct in law
34.
and responsive to the evidence was too general or incomplete.” (People v. Lang (1989)
49 Cal.3d 991, 1024.) However, this court may review an instructional error if it affects
defendant’s substantial rights. (§ 1259; See People v. Gamache (2010) 48 Cal.4th 347,
375.)
C. Analysis
1. The evidence supported instructing the jury with CALCRIM
No. 362.
Defendant argues that the court should not have instructed with CALCRIM
No. 362 because he was too intoxicated to have intended to deceive when he made the
statements and, therefore, the evidence failed to support an inference that the false
statements were evidence of his awareness of his own guilt. We reject this argument.
“ ‘It is an elementary principle of law that before a jury can be instructed that it
may draw a particular inference, evidence must appear in the record which, if believed by
the jury, will support the suggested inference. [Citation.] Whether or not any given set
of facts may constitute suppression or attempted suppression of evidence from which a
trier of fact can infer a consciousness of guilt on the part of a defendant is a question of
law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt
from [a defendant’s false statements], there must be some evidence in the record which, if
believed by the jury, will sufficiently support the suggested inference.’ ” (People v.
Hart (1999) 20 Cal.4th 546, 620.) “Permissive inferences are therefore constitutionally
suspect when, ‘under the facts of the case, there is no rational way the trier could make
the connection permitted by the inference.’ ” (People v. Gomez (2018) 6 Cal.5th 243,
290.)
An instruction on consciousness of guilt is properly given when there exists
evidence that a defendant made a deliberately misleading or false statement to explain his
or her conduct. (People v. Russell (2010) 50 Cal.4th 1228, 1254; People v. Page (2008)
44 Cal.4th 1, 50–51.) Here, defendant told Officer Herspring that he did not enter the
35.
house or hit Phyllis. However, defendant’s voice can be heard on the recording of the
911 call that Phyllis made from her bedroom, and she also testified that defendant had
entered the home, went to bed, and then awoke and assaulted her. “ ‘The jury could
rationally infer that defendant made a false statement to deflect suspicion from himself.’ ”
(Russell, at p. 1255.)
Evidence of defendant’s intoxication during the incident and statements to
Herspring were introduced at trial. Due to his intoxication, defendant may not have
remembered being in the house and hitting Phyllis and, therefore, he did not know his
statements were false. If his intoxication prevented him from knowing the statements
were false or making them to deceive, the statements could not support an inference that
he was conscious of his own guilt. But we reject the argument that the evidence of
intoxication was sufficient as a matter of law to dispel the inference of guilt caused by the
falsity of defendant’s statements. Defendant was able to remember how much he drank.
He remembered that he was responsible for breaking the planters and pots and told
Herspring he had done so. However, defendant denied being inside the residence or
hitting Phyllis. Because both incidents occurred close in time to each other, a jury could
infer that if defendant remembered his actions outside the residence, he should have also
remembered his actions inside the residence. On these facts, a jury could reasonably
believe that defendant intentionally denied committing the serious felony of inflicting
injury on Phyllis while admitting to the lesser crime of vandalism, supporting an
inference that defendant was aware of his guilt.
CALCRIM No. 362 limits the reach of any adverse inference both by telling the
jury that it decides the “meaning and importance” of the statements and by telling the
jury the making of a willfully false statement “cannot prove guilt by itself.” (CALCRIM
No. 362.) Furthermore, CALCRIM No. 362 is designed to benefit the defense,
“ ‘admonishing the jury to circumspection regarding evidence that might otherwise be
considered decisively inculpatory.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 908.)
36.
A jury would understand that consciousness of guilt was not the equivalent of a
confession and that the false statements themselves were not sufficient to prove defendant
guilty of the charged crimes. “The trial court properly left it for the jury to determine
whether defendant’s statement[s] to police [were] false or deliberately misleading, and if
so, what weight should be given to that evidence.” (People v. McGowan (2008)
160 Cal.App.4th 1099, 1104.)
We find the evidence supported instructing the jury with CALCRIM. No. 362 and
supported an inference of consciousness of guilt despite evidence that defendant was
intoxicated. The trial court did not err in instructing the jury with CALCRIM. No. 362.
2. The trial court did not err in failing to instruct on voluntary
intoxication.
Defendant argues that the trial court erred in failing to instruct the jury that
voluntary intoxication could negate the intent to deceive when making statements to the
officer. While defendant did not request such an instruction, he argues that the trial court
was required to instruct on voluntary intoxication sua sponte. We reject this contention.
In a criminal case, a trial court must instruct on general principles of law relevant
to the issues raised by the evidence, even absent a request for such instruction from the
parties. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This includes the duty to
give instructions relating a recognized defense to elements of a charged offense. (People
v. Saille (1991) 54 Cal.3d 1103, 1117.) However, a defendant is not presenting a special
defense and invoking sua sponte instructional duties when offering evidence to attempt to
negate or rebut the prosecution’s proof of an element of the offense. (People v. Anderson
(2011) 51 Cal.4th 989, 996.) In such a case, a court has a duty to provide a “ ‘pinpoint’ ”
instruction relating such evidence to the elements of the offense, but only upon request
and not sua sponte. (Id. at pp. 996–997.)
Defendant’s argument is based upon cases addressing intoxication as an aspect of
diminished capacity. Intoxication, as it relates to diminished capacity, is relevant only to
37.
whether the defendant actually had the requisite specific mental state to commit a crime
and is more akin to a pinpoint instruction to which a defendant is entitled upon request.
(People v. Saille, supra, 54 Cal.3d at p. 1120.) Where a defendant attempts to relate his
evidence of intoxication to an element of the crime, he or she may request a pinpoint
instruction. (Ibid.) Because such an instruction does not involve a “ ‘general principle of
law,’ ” a trial court does not err in failing to instruct on intoxication sua sponte. (Ibid.)10
However, in this case, intoxication was neither a defense nor related to any
element of the crimes charged. In his closing argument, defense counsel argued that the
evidence of voluntary intoxication precluded defendant from knowing that his statements
to police were false and, therefore, did not evidence defendant’s awareness of guilt. The
jury instruction relating to consciousness of guilt limits the adverse inference from
defendant’s false statements both by telling the jury that it decides the “meaning and
importance” of the statements and by telling the jury the making of a willfully false
statement “cannot prove guilt by itself.” (CALCRIM No. 362.) If a trial court has no
duty to instruct sua sponte on voluntary intoxication as it relates to an element of the
offense, we cannot impose such a duty where the instruction is unrelated to an element of
the offense and related only to evidence that by itself cannot be used to prove guilt.
Defendant’s reliance on People v. Wiidanen (2011) 201 Cal.App.4th 526 is
misplaced. In Wiidanen, the defendant had made false statements to the police and the
trial court instructed the jury that they could consider those false statements, if the
10 Several cases cited by defendant are inapposite as those defendants had requested the jury
instruction relating to voluntary intoxication and, therefore, the appellate courts did not address
whether the trial courts had a sua sponte duty to instruct the juries. (See People v. Mendoza
(1998) 18 Cal.4th 1114, 1121–1122, 1131–1135 [addressing whether evidence of voluntary
intoxication was relevant to intent required for aiding and abetting and remanding for
determination of whether jury instructions were correct]; People v. Reyes (1997) 52 Cal.App.4th
975, 981, 985 [expert testimony regarding intoxication and the defendant’s mental disorders
admissible to negate the defendant’s knowledge, an element of the crime of receiving stolen
property], disagreed with by People v. Berg (2018) 23 Cal.App.5th 959, 969.)
38.
defendant made them intentionally, to infer that the defendant was aware of his own guilt.
(Id. at p. 533.) Wiidanen acknowledged that if the jury believed the defendant was too
intoxicated to know his statements were false or misleading, then the jury could reject the
inference that defendant was aware of his own guilt. (Ibid.) However, the trial court had
instructed that the jury could only consider the defendant’s voluntary intoxication in
deciding whether he knew the victim was unconscious when the crime occurred
(CALCRIM No. 3426) and thus erroneously prohibited the jury from considering
defendant’s voluntary intoxication in assessing whether he intentionally made false
statements evidencing a consciousness of guilt. (Wiidanen, at p. 533.) “[A] trial court
has no sua sponte duty to instruct on the relevance of intoxication, but if it does instruct,
as the court here did, it has to do so correctly.” (People v. Mendoza, supra, 18 Cal.4th at
p. 1134.) Wiidanen held the trial court had erred because the instruction prohibited the
jury from considering the defendant’s intoxication in determining whether his false
statements were probative of his consciousness of guilt. (Wiidanen, at p. 533.)
In this case, the trial court did not instruct the jury that it could not consider
defendant’s voluntary intoxication in assessing whether his statements evidenced a
consciousness of guilt. Therefore, the jury in this case was not precluded by a court
instruction from considering defendant’s intoxication in determining whether defendant’s
false statements evidenced a consciousness of guilt. In fact, defense counsel even argued
to the jury in closing that defendant’s false statements to Herspring should not be used to
infer that defendant felt guilty because defendant’s intoxication prevented him from
intentionally making the false statements to deceive Herspring. Defendant has failed to
identify any case holding that the trial court had a sua sponte duty to instruct on voluntary
intoxication solely where offered to rebut the inference described in CALCRIM No. 362
and not needed to correct another voluntary intoxication instruction. We conclude that
this is not a “general principle of law” requiring a sua sponte instruction, and we find the
trial court did not err in its instructions to the jury.
39.
3. Harmless Error
Even if the trial court erred in giving CALCRIM No. 362, we nonetheless cannot
conclude that the error was prejudicial. Defendant testified at trial that he attacked
Phyllis after awaking from a dream and while she was asleep. He spoke with Phyllis
during phone conversations, acknowledging that he had hit her. Phyllis testified that
defendant hit her, and the 911 call corroborates that defendant was present and angry
with her. When arrested, defendant was outside the residence and admitted to having
vandalized her vehicle and planters. In short, the other evidence connecting him to those
offenses was overwhelming even if the jury could not consider his denial of the crime to
demonstrate consciousness of guilt. Therefore, we conclude that there is no reasonable
probability of a different verdict had the instruction not been given. The impact of an
inference of consciousness of guilt could not have resulted in a miscarriage of justice.
(People v. Watson, supra, 46 Cal.2d at p. 836.)
III. The trial court did not abuse its discretion by denying defendant’s invitation to
strike his prior serious felony convictions.
Defendant argues that the trial court abused its discretion in denying his invitation
to strike his prior convictions pursuant to section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 504 (Romero).11 We reject defendant’s argument as the
trial court acted within its discretion when it struck only two of the six prior strike
convictions.
A. Background
As to count 1, the amended information alleged six prior “strike” convictions
within the meaning of the Three Strikes law. In March 1983, defendant was convicted in
11 A defendant’s request for this type of leniency is commonly referred to as a “Romero
motion,” although defendants do not actually have a right to make motions under section 1385,
subdivision (a). (People v. Carmony (2004) 33 Cal.4th 367, 375, 379 (Carmony).) Defendant
thus captioned his request as an “INVITATION TO STRIKE” and we will use defendant’s
designation.
40.
Los Angeles County Superior Court case No. A624419 of rape (former § 261.2), forced
oral copulation (former § 288a, subd. (c)), and kidnapping (former § 207). Five years
later, in March 1988, defendant was convicted in Los Angeles County Superior Court
case No. A44793 of rape (former § 261.2), lewd and lascivious acts upon a minor (§ 288,
former subd. (b)), and sexual penetration of a minor (former § 289).
After the jury convicted defendant in this case on May 3, 2018, defendant waived
his right to a jury trial regarding his prior serious felony convictions, and the court
subsequently found them to be true.
Defendant filed his “INVITATION TO STRIKE PRIOR SERIOUS FELONY
CONVICTION[S]” on August 17, 2018. Defendant argued that (1) at his age, a 25-year-
to-life sentence was effectively a life sentence; (2) the instant offense is neither a violent
nor serious felony; (3) the instant offense is not similar to his earlier offenses; (4) his
victim also supported a lower sentence; (5) if given a lower sentence, he would be
paroled at an age where he would be less likely to reoffend; (6) his strike convictions
occurred 30 and 35 years earlier; (7) substance abuse was involved in the instant offense;
(8) his two strike convictions were close in time, obtained while in his early twenties and
during a short period of time in his life; (9) the short lapse in time between the two strike
cases would permit the court to consolidate them; and (10) in mitigation, he had been
abused by the victim and was himself a victim of intimate partner battering.
The prosecutor opposed defendant’s invitation to strike his prior convictions on
September 10, 2018. In arguing defendant was a danger to the public, the prosecutor
reviewed the underlying facts of defendant’s prior convictions from his 1983 and 1987
cases. In the 1983 case, defendant was sentenced to eight years in prison for rape, forced
oral copulation, and kidnapping. The victim in that case was riding her bicycle when
defendant approached her and eventually knocked her from her bike, grabbed her, and
forced her to an area between two houses. He tore off her pants and panties and told her
41.
that he intended to kill her when he was done. Defendant attempted to insert his penis
into her anus, forced his penis into her mouth, and then raped her.
In November 1987, while on parole, defendant abused his six-year-old daughter.
While his daughter was at her grandmother’s house, defendant got into bed with her,
disrobed them both, and inserted his fingers and penis into her vagina. Other family
members came into the room and stopped defendant. Defendant received a 27-year
prison term.12 He was paroled in 2004 and discharged from parole in September 2007.
The probation officer’s presentence report contained defendant’s explanation of
the instant offense:
“Everything in my life just went loose. I was hitting rock bottom
when that happened. It got to a boiling point when I snapped. I assaulted
my girl and destroyed our property.”
At the time of defendant’s interview with the probation officer, defendant had not been
employed since 2013, when he was laid off from his machinist job. Defendant admitted
that he drank six to 18 beers once a week. While he tried to attend AA meetings, he was
unable to stay sober enough to continue. Defendant also admitted that he used
methamphetamine, oxycontin, marijuana, or PCP at least twice a week. While in
custody, defendant attended a drug treatment program. He expressed remorse for his
actions and acknowledged he would need to pay for his crime. The presentence report set
forth defendant’s criminal history, including a description of the strike convictions as
well as convictions in 1980 and 1981 for misdemeanor vandalism and felony grand theft,
and a 2014 conviction for public intoxication.
The trial court conducted a hearing on defendant’s invitation prior to sentencing
on September 14, 2018. Phyllis testified she first met defendant when he was getting out
12 Prison records indicate defendant was originally paroled in June 1987, returned to prison
in July 1987, and then paroled again in September 1987.
42.
of the state hospital. 13 Defendant received certifications for welding and forklift driving
upon his release. He also attended counseling meetings for substance abuse. Phyllis
believed defendant to be a good person who had spent enough time in custody for this
crime. She wanted to resume her relationship with him. Phyllis further testified that they
did not have an abusive relationship and he had only hit her once.
After hearing argument, the trial court discussed its familiarity with the facts of the
case and its review of the record. In explaining why defendant did not fall outside the
spirit of the Three Strikes law, the trial court stated:
“Basically, the nature of all -- all of these strikes and the current
offense is violence, and it’s violence focused on women. The earlier case
was a horrendous case of violence against a young woman. The second
case was a horrendous case against [ ] defendant’s own daughter.
“This case involves someone with whom [defendant] had a romantic
relationship with and it was ongoing for some time. And just the violence
that was involved in all three of these instances cause the Court to believe
that it does not fall outside of the Spirit of the Three Strikes [law].”
The trial court did strike the conviction for lewd and lascivious acts upon a minor
(§ 288, former subd. (b)) and the conviction for sexual penetration of a minor (former
§ 289) after finding that these two counts arose from the same criminal act as the rape
conviction (former § 261.2) charged in the 1988 case. (See People v. Vargas (2014)
59 Cal.4th 635, 648 [holding a trial court abuses its discretion in failing to strike a prior
conviction when multiple convictions arise out of a single act by the defendant as
distinguished from multiple acts committed in an indivisible course of conduct].)
B. Law and Analysis
Section 1385 grants trial courts discretion to dismiss a prior strike conviction if the
dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at
13 The record contains no information regarding defendant’s placement in a state hospital,
nor when that occurred. Phyllis previously testified that she had first met defendant four years
prior to the instant offense.
43.
pp. 504, 529–530.) “ ‘A court’s discretion to strike [or vacate] prior felony conviction
allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in
strict compliance with … section 1385[, subdivision ](a) .…’ ” (People v.
Williams (1998) 17 Cal.4th 148, 158 (Williams).) The Three Strikes law “was intended
to restrict courts’ discretion in sentencing repeat offenders.” (Romero, at p. 528; accord,
People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes
law was to restrict judicial discretion”].) The Three Strikes law establishes “ ‘a
sentencing requirement to be applied in every case where the defendant has at least one
qualifying strike’ ” unless the sentencing court finds a reason for making an exception to
this rule. (Carmony, supra, 33 Cal.4th at p. 377.) There are “stringent standards that
sentencing courts must follow in order to find such an exception.” (Ibid.) In order to
dismiss a prior strike conviction, “the court in question must consider whether, in light of
the nature and circumstances of [the defendant’s] present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, at p. 161.)
A trial court’s decision not to dismiss a prior strike conviction is reviewed under
the deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 374.) The
Three Strikes law establishes that not striking a prior strike conviction is the norm, and
there is a “strong presumption that any sentence that conforms to the[ ] sentencing
norm[ ] is both rational and proper.” (Carmony, at p. 378.) An abuse of discretion is
established by demonstrating that the trial court’s decision was “irrational or arbitrary. It
is not enough to show that reasonable people might disagree about whether to strike one
or more of his prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
“Where the record is silent [citation] or ‘[w]here the record demonstrates that the trial
court balanced the relevant factors and reached an impartial decision in conformity with
44.
the spirit of the law,’ ” we are required to affirm the trial court’s ruling, “ ‘even if we
might have ruled differently in the first instance.’ ” (Carmony, at p. 374, first bracketed
insertion added.)
Defendant requested that the trial court exercise its discretion to strike the prior
conviction allegations. At sentencing, the trial court stated that it had reviewed the
motions, papers, documents, and submittals and listened to preliminary hearing and trial
testimony. The trial court found that defendant did not fall outside the spirit of the Three
Strikes law as he committed “horrendous” acts of violence on a woman he did not know
and, five years later, on his own young daughter. In the instant case, defendant visited
violence on someone with whom he shared a romantic relationship.
We conclude that defendant has failed to establish that the trial court’s denial of
the invitation to strike his prior convictions was outside the bounds of reason under the
facts and the law. We may not find an abuse of discretion unless the decision was so
irrational or arbitrary that no reasonable person could agree with it. And here, it was not.
The trial court considered relevant factors and acted to achieve legitimate sentencing
objectives. As the presentence report notes, defendant was convicted in five separate
criminal cases, had been unemployed for at least two years before the instant offense, and
had been abusing drugs twice a week and alcohol once a week.
Defendant argues that the trial court relied primarily, if not entirely, upon the
nature of the prior strike convictions themselves. The trial court’s stated reasons, which
may not have encompassed all of its legal reasoning, refer to both defendant’s prior strike
convictions as well as the instant offense. The trial court was required to weigh the
nature and circumstances of defendant’s instant offense and his prior violent felony
convictions, and the particulars of his background, character, and prospects. (Williams,
supra, 17 Cal.4th at p. 161.) This information was included in the materials the trial
court reviewed and in the victim’s testimony at defendant’s sentencing hearing.
45.
Because declining to strike a prior strike conviction is the “norm,” we presume the
trial court’s decision was proper. (Carmony, supra, 33 Cal.4th at p. 378.) The fact that
defendant’s prior strike convictions were 30 and 35 years old does not convince us
otherwise. “In determining whether a prior conviction is remote, the trial court should
not simply consult the Gregorian calendar with blinders on.” (People v.
Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey II); see People v. Solis (2015)
232 Cal.App.4th 1108, 1124 [a prior strike conviction is not properly stricken merely
because it is 30 years old].) “To be sure, a prior conviction may be stricken if it is remote
in time. In criminal law parlance, this is sometimes referred to as ‘washing out.’
[Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing
period of rehabilitation after a defendant has had the opportunity to reflect upon the error
of his or her ways.” (Humphrey II, at p. 813.)
However, in this case, defendant did not live a “ ‘legally blameless life’ ” after his
1983 and 1988 rape convictions. (Humphrey II, supra, 58 Cal.App.4th at p. 813.) He
was under the close supervision of prison authorities while incarcerated until 2004, then
under parole supervision until 2007. Only after 2007 was defendant responsible for
himself. While defendant suffered no further convictions between 2007 and 2013, his
drinking and drug issues led to his public intoxication conviction in 2014 and the instant
offense in 2015. Considering these circumstances, defendant’s prior strike convictions
were not so remote that he necessarily fell outside the spirit of the Three Strikes law. On
the contrary, defendant’s criminal history supports sentencing under the Three Strikes
law. The convictions and instant offense reveal serious and persistent criminal behavior.
(See People v. Gaston (1999) 74 Cal.App.4th 310, 320.) No case law compels a judge to
strike a prior conviction simply based on its age.
Similarly, the nature of the instant offense does not convince us that the trial court
abused its discretion in refusing to strike the prior strike conviction. Defendant’s instant
offense also involved violence against women. While defendant attempted to minimize
46.
the severity of the instant offense because it is not a “ ‘serious or violent’ felony,”
defendant punched the victim in the face, blackened her eye and cheek and threw her
head against a wall. In Williams, the Supreme Court characterized misdemeanor spousal
battery as a “ ‘crime[ ] involving actual violence.’ ” (Williams, supra, 17 Cal.4th at
p. 164.) We do not believe that the trial court abused its discretion in noting the
similarity of defendant’s past convictions and the instant offense involving violence
inflicted on women, even if not of a sexual nature as to the instant offense. The similarity
between the prior conviction and the instant offense “ ‘reveals that [defendant] had been
taught, through the application of formal sanction, that [such] criminal conduct was
unacceptable—but had failed or refused to learn his lesson’ [citation].” (Id. at p. 163,
first & third bracketed insertions added.) The nature of the instant offense did not require
the trial court to find defendant was outside the spirit of the Three Strikes law.
Furthermore, defendant’s alleged addiction to drugs did not operate to excuse his
commission of crimes. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511
[“drug addiction is not necessarily regarded as a mitigating factor when a criminal
defendant has a long-term problem and seems unwilling to pursue treatment”].)
Defendant has failed to show that the trial court was either unaware of its
discretion or considered impermissible factors. We cannot say that its ruling was
irrational or arbitrary such that no reasonable person could agree with it. The record
shows that the trial court considered counsels’ arguments as well as defendant’s criminal
history and his conduct in the instant offense in declining to strike his prior convictions.
On the record before us, the trial court did not abuse its discretion in deciding that the
prior strike convictions and instant offense fell within the spirit of the Three Strikes law.
47.
IV. The trial court did not violate due process when imposing fines, fees, and
assessments without determining whether defendant has the ability to pay.
A. Background
As part of defendant’s sentence, the trial court ordered that defendant pay an
$890 fine14 (§ 273.5, subd. (a));15 a $40 fine16 (§ 1202.5);17 a $750 presentence report
fee (former § 1203.1b); and a $108.19 booking fee (former Gov. Code, § 29550.2).
However, the trial court failed to impose a $40 court operations assessment (§ 1465.8,
subd. (a)) and a $30 criminal conviction assessment (Gov. Code, § 70373) as to count 2.
The trial court also failed to order restitution (§ 1202.4, subd. (b)) and direct victim
restitution (§ 1202.4, subd. (f)) fines as to both counts.
B. Analysis
Defendant argues the court violated his due process rights by imposing these fines,
fees, and assessments without determining whether he has the ability to pay them.
Defendant’s due process argument is based on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), which was decided after defendant was sentenced and while his current
14 The fine included a (1) $200 base fine (§ 273.5, subd. (a)); (2) $340 state and local
penalty assessment (Pen. Code, § 1464 & Gov. Code, § 76000); (3) $40 criminal surcharge
(§ 1465.7); (4) $100 state court construction penalty (Gov. Code, § 70372, subd. (a)); (5) $40
court operations assessment (§ 1465.8, subd. (a)); (6) $100 DNA penalty assessment (Gov. Code,
§ 76104.6); (7) $40 emergency medical services penalty assessment (Gov. Code, § 76000.5); and
(8) $30 criminal conviction assessment (Gov. Code, § 70373).
15 We note that the trial court failed to indicate that this fine was applicable to count 1 but
find that the reference to section 273.5, subdivision (a) clearly indicates that the fine was ordered
as part of the sentence for count 1.
16 The fine included a (1) $10 base fine (§ 1205.5); (2) $ 17 state and local penalty
assessment (Pen. Code, § 1464 & Gov. Code, § 76000); (3) $2 criminal surcharge (§ 1465.7);
(4) $5 state court construction penalty (Gov. Code, § 70372, subd. (a)); (5) $4 DNA penalty
assessment (Gov. Code, § 76104.6); and (6) $2 emergency medical services penalty assessment
(Gov. Code, § 76000.5).
17 We note that the trial court failed to specifically indicate that this fine was applicable to
count 2. However, section 1205.5 provides for a $10 fine for violations of section 594—the
crime charged in count 2—indicating that the trial court sentenced defendant to pay this fine as
the sentence for count 2.
48.
appeal was pending. Dueñas held that “due process of law requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before
it imposes” certain fines or fees. (Id. at p. 1164; accord, People v. Castellano (2019)
33 Cal.App.5th 485, 488–489.) Relying on Dueñas, defendant asks this court to remand
and order that no fines or fees be imposed unless the trial court finds that defendant has a
present ability to pay.
The People ask that the case be remanded because the trial court failed to impose a
restitution fine or victim restitution. The People argue that upon remand, defendant
should be permitted to request that the trial court consider his ability to pay the various
fines, fees, and assessments—with the proviso that any challenge to punitive fines must
be evaluated under Eighth Amendment standards, rather than due process principles.
We find defendant’s assertions unpersuasive and decline to stay or vacate the
imposed fines, fees, and assessments or to remand on this basis. We will address the
People’s request regarding the mandatory restitution fine and victim restitution separately
below.
In Dueñas, the defendant lost her driver’s license because she was financially
unable to pay her juvenile citations. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) She
continued to reoffend for driving with a suspended license because the aggregating
criminal conviction assessments and fines prevented her from recovering her license.
(Ibid.) The Dueñas court described this as “cascading consequences” stemming from “a
series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.”
(Id. at pp. 1163–1164.) The Dueñas court concluded the defendant faced ongoing
unintended punitive consequences because of the imposed financial obligations. (Id. at
p. 1168.) Dueñas determined those unintended consequences were “fundamentally
unfair” for an indigent defendant under principles of due process. (Ibid.)
We decline to expand Dueñas’s holding beyond the unique facts found in that
case. Unlike the Dueñas defendant, here, defendant does not establish the violation of a
49.
fundamental liberty interest. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1056.)
His incarceration was not a consequence of prior criminal assessments and fines. He was
not deprived of liberty because of his indigency. (See id. at pp. 1056–1057 [due process
not violated when defendants are not denied access to the courts, not prohibited from
presenting a defense, not incarcerated due to an inability to pay prior fees, fines, or
assessments, do not face ongoing unintended punitive consequences, or do not suffer a
violation of a fundamental liberty interest]; People v. Son (2020) 49 Cal.App.5th 565,
599–601 (conc. & dis. opn. of Franson, J.) [no violation of fundamental liberty interest
where trial court imposed disputed fees, fines, and assessments without first conducting
an ability to pay hearing; case did not present unique concerns addressed in Dueñas—the
defendant was not incarcerated because of his indigency, but for his continuing violent
criminal acts while serving a life prison term]; but see id. at pp. 577–579 (lead opn. of
Smith, J.) [nonpunitive court facilities and court operations assessments may not be
imposed on a defendant who is unable to pay because these charges are imposed on court
users for use of the court, burdening their exercise of the fundamental right of access to
the criminal courts].)
In any event, we 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. (See Chapman v. California (1967) 386 U.S.
18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031, 1035; 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.’ ” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
50.
We can infer from the instant record that defendant has the ability to pay the
aggregate amount of fines, fees, and assessments from probable future wages, including
prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Lowery, supra,
43 Cal.App.5th at pp. 1060–1061; accord, People v. Douglas (1995) 39 Cal.App.4th
1385, 1397.) The court sentenced defendant to 25 years to life and there is nothing in the
record that shows defendant would be unable to satisfy the fines, fees, and assessments
imposed by the court while serving his prison term. 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 prison wages during his prison
sentence. (See, e.g., People v. Jones, supra, 36 Cal.App.5th at p. 1035 [“Given that the
restitution fine is $300 and the assessments are $70, [the defendant] will have sufficient
time to earn these amounts during his sentence, even assuming [he] earns nothing more
than the minimum”]; see also People v. Lewis (2009) 46 Cal.4th 1255, 1321 [concluding
large restitution fine which would be deducted from portion of any funds given to the
defendant by his family was not inappropriate]; People v. DeFrance (2008)
167 Cal.App.4th 486, 505 [court did not abuse its discretion in imposing maximum fine
although it may be difficult for the defendant to pay it].)
We thus conclude, based on the record before us, that defendant is able to pay the
fines, fees, and assessments he was ordered to pay. He is not entitled to remand for a
hearing on the subject.
V. Other Alleged Trial Court Errors Regarding Sentence
The People additionally contend that the trial court erred by failing to (1) sentence
defendant on count 2, (2) impose a $40 court operations assessment (§ 1465.8, subd. (a))
and a $30 criminal conviction assessment (Gov. Code, § 70373) on count 2, and (3) order
both a restitution fine (§ 1202.4, subd. (b)) and direct victim restitution (§ 1202.4,
subd. (f)) on both counts.
51.
A. Legal Standard
“In passing sentence, the court has a duty to determine and impose the punishment
prescribed by law.” (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589.) Although
the People did not appeal the sentence or object below, an unauthorized sentence may be
challenged “for the first time on appeal, and is subject to judicial correction whenever the
error comes to the attention of the reviewing court.” (People v. Dotson (1997) 16 Cal.4th
547, 554, fn. 6.) Based on our review of the record, it appears the trial court erred in
failing to impose mandatory assessments and direct victim restitution. However, the
People forfeited their objection to the trial court’s failure to order a restitution fine.
B. The trial court sentenced defendant on count 2.
The court had a duty to pronounce judgment on each count of which defendant
was convicted. (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 724). The
People request remand, arguing that the trial court did not impose a sentence on count 2.
However, we do not agree that a sentence was not pronounced on count 2. The trial court
pronounced defendant’s sentence as follows:
“In this case, probation is hereby denied pursuant to [section ]667,
subdivision (c)(2) of the Penal Code.
“Count 1, violation of Section 273.5, subdivision (a) of the Penal
Code, [ ] defendant is sentenced to 25 years to life pursuant to
[section ]1170.12, subdivision (c)(2)(a) of the Penal Code.
“Parole term to fasten.
“[Section ]296 of the Penal Code has been verified.
“Driver’s license suspended for two years pursuant to [former
Vehicle Code section ]13202.6, subdivision (a)(1) .… Postponement of
suspension to commence following release from prison.
“Defendant’s to pay a fine in the amount of $890 pursuant to
[section ]273.5, subdivision (a) of the Penal Code, which consists of the
components listed in the probation officer’s report and to be included in the
minute order.
52.
“Defendant’s to pay a $40 fine pursuant to section 1202.5 of the
Penal Code, which consists of the components listed in the probation
officer’s report and to be included in the minute order.
“Defendant is to pay a $750 felony presentence report fee pursuant
to [former section ]1203.1(b) of the Penal Code.
“And $108.19 booking fee payable to the City of Madera pursuant to
[former] California Government Code Section 29550.2.”
While the trial court did not refer specifically to count 2 (vandalism in violation of
§ 594, subd. (a)) in pronouncing judgement, it did order a fine pursuant to section 1202.5
and suspended defendant’s driver’s license pursuant to former Vehicle Code section
13202.6, subdivision (a)(1). Inasmuch as both of those sections describe penalties for
section 594 and not section 273.5 (count 1), the trial court did impose sentence on
count 2, ordering the payment of a fine and the suspension of defendant’s driver’s
license. Vandalism, as charged in the amended information, can be punished by up to
one year in custody or by a fine alone. (§ 594, subd. (b)(2)(A).) We reject the People’s
argument that the trial court failed to pronounce defendant’s sentence as to count 2.
C. The trial court failed to impose mandatory assessments.
The People are correct that the trial court failed to impose a $40 court operations
assessment (§ 1465.8, subd. (a)) and a $30 criminal conviction assessment (Gov. Code,
§ 70373) as to count 2. The presentence report noted that the assessments would apply to
both counts but failed to include them in the $40 total fine for count 2. The trial court,
relying on the presentence report, similarly failed to include them in the total fine for
count 2. Defendant responds that because the trial court did impose a fine on count 2,
failure to include the assessments indicates the trial court intended to waive them.
However, the court operations and criminal conviction assessments are mandatory, and
we may order them on appeal. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543,
fn. 2; People v. Woods (2010) 191 Cal.App.4th 269, 272–273.)
53.
D. The people have forfeited objection to the trial court’s failure to impose a
restitution fine.
The People request that we remand the matter so the court may determine and
orally impose the restitution and parole revocation fines pursuant to sections 1202.4 and
1202.45, or state compelling reasons for not imposing the fines. However, we agree with
defendant that the People’s failure to object earlier prevents correction by this court.
Section 1202.4, subdivision (b) provides: “In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.” The amount of any restitution fine imposed lies within the court’s
discretion, but for felony convictions “shall not be less than three hundred dollars ($300)
and not more than ten thousand dollars ($10,000).” (Id., subd. (b)(1).) Section 1202.45
further requires the court to, “at the time of imposing the restitution fine pursuant to
subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine
in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4,” if the
defendant’s sentence includes a period of parole. (§ 1202.45, subd. (a).) In other words,
both fines must be imposed in a minimum amount of $300 “unless the sentencing court,
in the words of the statute, ‘finds compelling and extraordinary reasons for not doing so,
and states those reasons on the record.’ ” (People v. Tillman (2000) 22 Cal.4th 300, 302.)
In Tillman, as here, the trial court failed to impose the restitution fines and did not
state its reasons for not imposing them on the record. (People v. Tillman, supra,
22 Cal.4th at p. 302.) The prosecution asked the Court of Appeal to amend the judgment
to add the fines. (Ibid.) The Court of Appeal did so, and the Supreme Court reversed,
concluding that “the waiver doctrine bars the People from obtaining the relief they seek
on appeal.” (Ibid.) Because the trial court may refuse to impose the restitution fine for
“ ‘compelling and extraordinary reasons,’ ” opposition to a discretionary sentencing
decision must be made in the trial court before challenging the decision on appeal. (Ibid.,
54.
citing People v. Scott (1994) 9 Cal.4th 331 & People v. Welch (1993) 5 Cal.4th 228.)
Therefore, an appellate court may not correct errors arising from the trial court’s failure
to make or articulate its discretionary sentencing choices if the complaining party—
whether the defendant or the People—failed to object to the omission at trial.
The trial court erred in failing to comply with sections 1202.4, subdivision (b) and
1202.45, subdivision (a). It was required to either impose the fines or state its reason for
declining to do so but did not. This error is not correctable on appeal because it was not
timely brought to the trial court’s attention. We will not remand to the trial court for
further proceedings with regard to these fines.
E. The trial court erred in failing to order victim restitution.
The probation officer’s presentence report was read and considered by the trial
court prior to sentencing and stated that restitution was an issue. Nevertheless, there was
no discussion of victim restitution at sentencing, no order of direct victim restitution was
made, and the prosecutor did not object. The People argue that we are required to
remand to the trial court for a restitution hearing. Defendant has not addressed the
People’s argument regarding victim restitution except to acknowledge the trial court
retains jurisdiction to address victim restitution. While we will order the abstract of
judgment to be amended to reflect defendant’s mandatory obligation to pay victim
restitution, we see no need for remand for the reasons discussed below.
Unlike the restitution fine, a trial court’s failure to order victim restitution is not
subject to waiver because the People failed to object. (See People v. Moreno (2003)
108 Cal.App.4th 1, 10.) Direct victim restitution is not a discretionary sentencing choice
as it is mandated by the California Constitution (art. I, § 28, subd. (b), par. (13)). This
mandate is carried out through section 1202.4. (People v. Giordano (2007) 42 Cal.4th
644, 656.) Section 1202.4, subdivision (f) requires the trial court to order restitution to
victims whenever a victim has suffered economic loss as a result of the defendant’s
55.
conduct. If the amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be determined at the
direction of the court. (Ibid.) A trial court is mandated to order “full restitution.” (Ibid.;
see People v. Rowland (1997) 51 Cal.App.4th 1745, 1751–1752; see also People v.
Bernal (2002) 101 Cal.App.4th 155, 164–165.)
Because victim restitution is mandatory, “a sentence without such an award is
invalid.” (People v. Rowland, supra, 51 Cal.App.4th at p. 1751; see also People v.
Bernal, supra, 101 Cal.App.4th at pp. 164–165 [sentence that fails to award victim
restitution, or to award full restitution, is invalid], citing Rowland, at p. 1751; People v.
Moreno, supra, 108 Cal.App.4th 1 at pp. 10–11 [failure to order any victim restitution
rendered the sentence invalid, and correctable at any time under section 1202.46].) A
reviewing court can order correction of an unauthorized sentence, even when the
prosecution has not appealed. (People v. Valdez (1994) 24 Cal.App.4th 1194, 1198–1204
[sentence making no provision for victim restitution is unauthorized, and subject to
correction notwithstanding prosecution’s failure to object at sentencing].)
The judgment shall be modified to order defendant to pay direct victim restitution
as to counts 1 and 2 in an amount to be determined by the probation department.
(§ 1202.4, subd. (f).) Defendant shall pay restitution to the victim identified in the
presentence report or, if the victim has received assistance from the California Victim
Compensation Board, restitution shall be deposited into the Restitution Fund. (Id.,
subd. (f)(2).)
The People request that we remand to the trial court for a victim restitution hearing
in this matter. However, section 1202.46 provides continuing jurisdiction for a trial court
to impose or modify restitution and permits a victim, the district attorney, or the trial
court on its own motion to address victim restitution at any time. The victim in this case
failed to provide the probation department with specific information as to economic
losses suffered due to defendant’s conduct. Though she testified at the sentencing
56.
hearing, Phyllis still did not provide information regarding her economic losses.
However, should the People or Phyllis desire to seek restitution from defendant,
section 1202.46 provides the appropriate procedure for doing so in the trial court at any
time and, therefore, remand is unnecessary.
F. Effect of Assembly Bill No. 1869
The $750 presentence report fee (former § 1203.1b) and $108.19 booking fee
(former Gov. Code, § 29550.2) recently became “unenforceable and uncollectible”
through the enactment of Assembly Bill No. 1869 (2019–2020 Reg. Sess.), effective
July 1, 2021. The bill added section 1465.9, subdivision (a), which states in relevant part:
“On and after July 1, 2021, the balance of any court-imposed costs
pursuant to … Sections … 1203.1b … as those sections read on June 30,
2021, shall be unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92,
§ 62.)
The bill also added the Government Code section 6111, subdivision (a), which states in
relevant part:
“On and after July 1, 2021, the unpaid balance of any court-imposed
costs pursuant to … Sections … 29550.2 … as those sections read on
June 30, 2021, is unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92,
§ 11.)
Now that July 1, 2021, has passed, we think the plain language of this statute
requires that we vacate any portion of the judgment imposing any unpaid balance of the
$750 presentence report fee (former § 1203.1b) and the $108.19 booking fee (former
Gov. Code, § 29550.2). (See People v. Clark (2021) 67 Cal.App.5th 248, 259.) The
parties agree.
DISPOSITION
The judgment is modified to impose a $40 court operations assessment (§ 1465.8,
subd. (a)) and a $30 criminal conviction assessment (Gov. Code, § 70373) as to count 2.
57.
The judgment is further modified as to counts 1 and 2 to order defendant to pay
direct victim restitution in an amount to be determined by the probation department to the
victim identified in the presentence report. (See § 1202.4, subd. (f).) If the victim has
received assistance from the California Victim Compensation Board, restitution shall be
deposited into the Restitution Fund. (Id., subd. (f)(2).)
Any portion of the judgment imposing any balance of the $750 presentence report
fee imposed pursuant to former section 1203.1b and the $108.19 booking fee imposed
pursuant to former Government Code section 29550.2 unpaid as of July 1, 2021, is
vacated.
The trial court is directed to prepare and forward to the Department of Corrections
and Rehabilitation an amended abstract of judgment reflecting the modifications.
As modified, the judgment is affirmed.
HILL, P. J.
WE CONCUR:
DETJEN, J.
PEÑA, J.
58.