Opinion
E072423
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. DARNELL EUGENE EAVES, Defendant and Appellant.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1804598) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Modified and affirmed with directions. Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant Darnell Eugene Eaves of, among other things, one count of dissuading a victim from reporting a crime (Pen. Code, § 136.1, subd. (a); count 3). The trial court sentenced him to a term of 25 years to life, plus six years, and imposed a $10,000 restitution fine and $90 in assessments.
Unless otherwise indicated, all future statutory references are to the Penal Code.
On appeal, defendant argues (1) the trial court erred by failing to instruct the jury on the specific intent requirement for count 3; (2) his counsel was ineffective for failing to request a mental health diversion; (3) his counsel was ineffective for failing to object to the fine and assessments; and (4) the abstract of judgment must be modified to correct his custody credits and to strike a fine that the trial court did not impose. The People agree with defendant's fourth contention, but dispute the other three.
We agree with the parties that the abstract of judgment must be modified. We otherwise reject defendant's arguments and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2017, V.A. and defendant began a romantic relationship. At the time, they were both transient and lived in a tent camp at Fairmount Park in Riverside. About eight months into their relationship, defendant began physically abusing V.A. by restraining and shoving her when they argued.
In August 2018, V.A. told defendant she no longer wanted to be in a relationship with him, which he would not accept. V.A. tried to avoid defendant, so she stayed with her children or at her mother-in-law's house, but defendant would show up at the house looking for her.
On August 23, 2018, V.A. was arrested and taken into custody after defendant called the police and alleged that V.A. had pulled a knife on him. After V.A. was released the following day, she returned to Fairmount Park. V.A. did not want to be around defendant and tried to avoid him because she was mad at him for his "bogus" accusations that led to her arrest.
Defendant came around where V.A. was staying at the park "off and on" throughout the day and threatened her "over and over." He said things like, "[y]ou know, you can't go anywhere," and "'[y]ou don't have anywhere that you can go that I won't find you.'"
V.A. tried to record defendant on her cell phone each time he approached her, which angered defendant. Defendant knew V.A. was filming him because she held "[her cell] phone out recording" him. Defendant said things like, "'[w]hat is that going to do?'" and "I'm not afraid of the cops. 'What are they going to do?'"
When V.A.'s cell phone ran out of battery, defendant's demeanor changed immediately. As V.A. put it, defendant "took the upper hand" after he realized her cell phone battery had died. V.A. tried to walk away from defendant, but he approached her from behind and grabbed her by the neck with his forearm. Defendant said, "I don't know what the f---k you think you're doing. Where do you think you're going to go?" Defendant then threw V.A. on the ground and said, "[w]here do you think you're going to go? 'You don't have anywhere to go where you can get away from me.'" He also threatened to "f---k [her] up" V.A. then ran away from defendant.
Later that day, defendant approached V.A., but she tried to avoid him. V.A. told defendant several times that she was going to call the police, "thinking that he would leave [her] alone." V.A. put her hands in her pocket to keep control of her cell phone and to prevent defendant from taking it.
V.A. then took the cell phone out of her pocket to turn it on in case she needed to call the police. Defendant pulled the cell phone out of her hands, threw it over his head and behind him, and walked away. V.A. recovered the cell phone and turned it on, but it ran out of battery almost immediately. V.A. used a friend's cell phone to call the police, who arrested defendant a few hours later.
Defendant was charged with one count of inflicting corporal injury resulting in a traumatic condition on a person he previously dated (§ 273.5, subd. (a); count 1); one count of assault by means of force likely to cause great bodily injury (§ 245; count 2); one count of dissuading a victim or witness from reporting a crime by force or threat of force (§ 136.1, subd. (a); count 3). The information also alleged defendant had been convicted of two prior serious felonies within the meaning of section 667, subdivision (a), as well as two prior strike offenses within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(a).
A jury found defendant guilty on all counts, and he admitted the prior prison and strike convictions. The trial court sentenced defendant as a third strike offender and imposed an indeterminate term of 25 years to life for count 3, with a determinate term of six years for count 1. The trial court imposed, but stayed a six-year term on count 2. The trial court also ordered defendant to pay a $10,000 restitution fine (§ 1202.4, subd. (b)(1) and $90 in criminal conviction assessments ($30 per convicted charge; Gov. Code § 70373), and imposed but stayed a $10,000 parole revocation fine (§ 1202.45).
Defendant timely appealed.
III.
DISCUSSION
A. Jury Instructions
Defendant argues the trial court improperly failed to instruct the jury on the specific intent element required for count 3, dissuading a victim or witness from reporting a crime by force or threat of force. We disagree.
As to count 3, the trial court instructed the jury with, among others, CALCRIM Nos. 2622 and 2623. CALCRIM No. 2622 explained that, to convict defendant of dissuading a witness or victim of crime from reporting a crime by force or threat of force, the People had to prove defendant (1) "maliciously tried to prevent or discourage [V.A.] from making a report that she was a victim of a crime to law enforcement," (2) V.A. "was a witness or victim of crime," and (3) "defendant knew he was trying to prevent or discourage [V.A.] from[]making a report to law enforcement." CALCRIM No. 2623 explained that, to convict defendant on count 3, the jury had to find that he acted maliciously and used force or threatened to use force on a witness or victim.
Defendant contends the third element of CALCRIM No. 2622 should have read "defendant knew [he] was trying to prevent or discourage [V.A.] from making a report to law enforcement" and intended to do so." Defendant asserts the trial court's omission of the "intended to do so" language, which is given in the standard form of CALCRIM No. 2622 constitutes prejudicial error. He argues that, without that language, the jury was not instructed on the specific intent element for count 3. He further asserts CALCRIM No. 2623 "did not remedy the error" because it did not reference the specific intent required for the offense.
Section 136.1 proscribes several things, including making threats or using violence to dissuade a victim of a crime from reporting it or to dissuade a witness from testifying. (People v. Ford (1983) 145 Cal.App.3d 985, 989.) "The law is settled that the crime of threatening a victim or witness . . . is a specific intent crime." (People v. Brenner (1992) 5 Cal.App.4th 335, 339 (Brenner).) "Unless the defendant's acts or statements are intended to affect or influence a potential witness's or victim's testimony or acts, no crime has been committed under [section 136.1]." (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.)
At the outset, we disagree with the People that defendant forfeited his challenge to CALCRIM No. 2622 by failing to object to it in the trial court. As defendant correctly observes, "it is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge." (People v. Mil (2012) 53 Cal.4th 400, 409.) This is because the trial court has "a sua sponte duty to instruct the jury on . . . the elements of a charged offenses." (Ibid.) Accordingly, defendant was not required to object to preserve his argument that the trial court failed to properly instruct the jury on the specific intent requirement of count 3.
We also reject the People's argument that defendant invited the alleged instructional error by consenting to the trial court's proposed instructions, including CALCRIM No. 2622 as given to the jury. "Error is invited only if defense counsel affirmatively causes the error and makes 'clear that [he] acted for tactical reasons and not out of ignorance or mistake' or forgetfulness." (People v. Lara (2001) 86 Cal.App.4th 139, 165.) Nothing in the record suggests defense counsel asked for CALCRIM No. 2622 to omit the "intended to do so" language for tactical reasons. Instead, it appears defense counsel and the trial court overlooked the omission.
"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole." (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) The trial court must sua sponte instruct the jury "on general principles of law that are closely and openly connected with the facts of the case." (People v. Perez (1992) 2 Cal.4th 1117, 1129.) "'[I]n reviewing a claim of instructional error, the ultimate question is whether "there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.'" (People v. Gana (2015) 236 Cal.App.4th 598, 608.) The "'correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citation.] '"The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole."'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) "Jurors are presumed able to understand and correlate instructions . . . ." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, "[t]here is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) We review claims of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
We agree with defendant that CALCRIM No. 2622 should have included the "intended to do so" language that the trial court omitted—which is included in the standard form of CALCRIM No. 2622—because it would have stated the specific intent element required for count 3. But, as explained below, there was no instructional error because the instructions as a whole correctly instructed the jury on the specific intent required for count 3.
CALCRIM No. 252 explained that count 3 "require[s] a specific intent or mental state." The instruction further explained that, "[f]or you to find a person guilty of this crime . . . that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime or allegation." Importantly, CALCRIM No. 252 stated that "[t]he specific intent or mental state required for the crime of dissuading a witness is the intent to prevent or discourage a witness or victim of crime from causing or seeking the arrest of someone in connection with a crime." Thus, CALCRIM No. 252, as given to the jury, unambiguously instructed the jury that it had to find defendant acted with a specific intent to be found guilty of count 3, and correctly instructed the jury on the requisite specific intent. We therefore conclude that any error in the omission of the "intended to do so" language in CALCRIM No. 2622 was cured by CALCRIM No. 252.
Defendant suggests CALCRIM No. 2623, as given to the jury, was deficient because it "made no reference to the specific intent element of the offense." We are unaware of any authority that required the trial court to add language to CALCRIM No. 2623 about the specific intent for the offense of dissuading a witness. "Because the offense always requires specific intent, the committee has included the knowledge requirement with the specific intent requirement in element 3" of CALCRIM No. 2622 only. (Judicial Council of Cal. Crim. Jury Instns. (2012) Bench Notes to CALCRIM No. 2622.) In any event, CALCRIM No. 252 cured any error in CALCRIM No. 2633. We therefore conclude that, taken as a whole, the trial court properly instructed the jury.
Regardless, even if the trial court's instructions were incorrect, any resulting error was harmless beyond a reasonable doubt. (Brenner, supra, 5 Cal.App.4th at p. 339.) Whether an erroneous instruction related to a section 136.1 charge is determined on a case-by-case basis. (People v. Ford, supra, 145 Cal.App.3d at pp. 989-990.) When the allegedly dissuading actions are subject to different interpretations, not all of which entail a specific intent to dissuade the victim, the failure to instruct on specific intent requires reversal. (Ibid.) But if the only permissible interpretation of the defendant's unambiguous conduct is that the defendant specifically intended to dissuade a witness, any instructional error is harmless beyond a reasonable doubt. (People v. Jones (1998) 67 Cal.App.4th 724, 727.)
For instance, in Brenner, the trial court erroneously instructed the jury that a section 136.1 charge was a general intent crime, not a specific intent crime. (Brenner, supra, 5 Cal.App.4th at p. 339.) The Brenner court held the error was harmless, however, because the defendant's statement underlying the offense—that he would kill the victim if the victim called the police—was "absolutely unambiguous as to its intent." (Ibid.) The court reasoned that defendant's "purpose in threatening to kill the victim was plainly to prevent him from calling the police" because his statement left "no room for any other interpretation." (Ibid.)
By contrast, in People v. Ford, supra, 145 Cal.App.3d at p. 989, the defendant's statement, "'You punk mother f[--], we'll get you, you've got kids,'" was ambiguous. The Ford court reasoned the statement could have been intended to dissuade the witness from testifying or a statement of revenge. (Ibid.)
In People v. Jones, supra, 67 Cal.App.4th 724, the trial court erroneously instructed the jury that victim intimidation in violation of section 136.1 was a general intent crime. (Id. at p. 727.) But the error was harmless because the defendant's comments were unambiguously intended to dissuade a witness from testifying. (Ibid.) The defendant said to the potential witness, "'I'll do whatever I have to do. Just don't testify, man. I'm telling you, Darrell, I'll do whatever I have to, man.'" (Id. at p. 728.) His comments therefore "demonstrated an explicit intent to dissuade" the victim from testifying. (Ibid.)
Here, defendant's conduct and statements toward V.A. likewise demonstrated an unambiguous intent to dissuade her from reporting an alleged crime. V.A. told defendant several times that she was going to call the police and tried to record him on her cell phone because she feared for her safety due to his repeated violent and threatening behavior. In response, defendant grabbed her by the neck and threw her to the ground. Later that day, when V.A. again tried to record defendant on her cell phone and threatened to call the police, he grabbed the cell phone out of her hands and threw it away. The only reasonable interpretation of defendant's conduct is that he intended to dissuade V.A. from calling the police and did so by using force on her. Accordingly, any instructional error in CALCRIM No. 2622 or 2623 was harmless beyond a reasonable doubt.
B. Mental Diversion
Defendant asserts his counsel was ineffective for failing to request mental health diversion under section 1001.36, so his case must be remanded to allow the trial court to determine whether to grant him mental diversion. We decline to reach the merits of this argument here.
Effective June 27, 2018, the Legislature passed Assembly Bill No. 1810 (2017-2018 Reg. Sess.), which added sections 1001.35 and 1001.36 to the Penal Code. (Stats. 2018, ch. 34, § 24.) These statutes permit discretionary diversion of persons with qualifying mental disorders that contributed to the commission of the charged offense. (See People v. Frahs (2018) 27 Cal.App.5th 784, 789, review granted Dec. 27, 2018, S252220.) In this context, "diversion" means "the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication . . . ." (§ 1001.36, subd. (c).) The court may grant diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives his or her speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b)(1).)
As noted, however, defendant's counsel did not request a hearing regarding his eligibility for mental health diversion under section 1001.36, which went into effect before defendant's trial. Defendant contends this failure constituted ineffective assistance of counsel, and that his case should be remanded for the trial court to determine his eligibility for diversion under section 1001.36.
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
On direct appeal, ineffective assistance is established "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai, supra, 57 Cal.4th at p. 1009.) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistance of counsel "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Here, the record is silent as to why defense counsel failed to raise the issue of pretrial diversion with the trial court. Defense counsel may have had tactical reasons not to pursue the issue. For example, defense counsel may have discussed with defendant the possibility of pretrial diversion, but learned that he did not want to pursue it. There could be other reasons, including facts not in the record, that reasonably led defense counsel to conclude that the trial court would have found defendant was not eligible for diversion. Because there may be valid tactical reasons for defense counsel's not requesting mental diversion, we reject defendant's ineffective assistance of counsel challenge.
C. Fines and fees
Defendant contends his trial counsel was ineffective for failing to object to the trial court's imposition of a $10,000 restitution fine, the statutory maximum, and $90 in assessments under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We disagree.
Dueñas held that a trial court must "conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before imposing a restitution fine under section 1202.4 or an assessment under Government Code section 70373. (Dueñas, 30 Cal.App.5th at p. 1164.) The Dueñas court further held that it violates an indigent defendant's constitutional rights to impose fines and fees that the defendant cannot afford to pay. (Id. at pp. 1160-1161.)
Without determining whether defendant had an ability to pay, the trial court here imposed a $10,000 restitution fine under section 1202.4 and $90 in assessments under Government Code section 70373. When doing so, the trial court waived several fees because it found that defendant was indigent and could not pay them. The trial court said, "the Court will not impose a presentence probation report [$1,095]. The defendant is indigent. The Court will not impose booking fees [$514.58]. The defendant is indigent. The Court will not impose a presentence incarceration fee [$1,500]. The defendant is indigent." When the trial court imposed a $10,000 restitution fine and $90 in assessments, trial counsel did not make a Dueñas objection, even though the Dueñas decision had issued more than two months before defendant's sentencing.
The record is silent as to why defendant's counsel did not object to the fine and assessments. However, it is conceivable defendant's attorney decided not to object for reasons unrelated to his ability to pay. A defendant's inability to pay is just one among many factors the court should consider in setting the restitution fine above the minimum. The court should also consider "the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime." (§ 1202.4, subd. (d).) Defendant's attorney may have concluded that, given the seriousness of his offenses and the psychological harm to V.A. and her family, any objection to the maximum restitution fine would have been fruitless.
As to the $90 in assessments, we reach the same conclusion. "[A] defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances, especially in serious cases involving potentially long prison sentences. . . . We cannot speculate, given the absence of information before us, what led to defense counsel's decision not to object, but a myopic focus on [defendant's] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel's strategic calculus." (People v. Acosta (2018) 28 Cal.App.5th 701, 707.) Because "[w]e have no idea why counsel did not raise the ability to pay issue," and because "[w]e have no idea whether the fine[] . . . or assessments were of any consequence," we conclude defendant's ineffective assistance of counsel claim should be addressed through a petition for habeas corpus, not on direct appeal. (People v. Keene (2019) 43 Cal.App.5th 861, 864-865.)
D. Presentence Custody Credits
Defendant spent 154 days in custody between the time of his arrest and sentencing for the current offenses. The trial court awarded defendant credit for 177 days served, finding that he earned 154 days for time actually served, plus 23 days of conduct credit under section 4019, for a total of 177 days. The parties agree that the trial court erred, and that defendant should have been awarded 154 days of conduct credit under section 4019, not 23.
We agree with the parties. Defendant was incarcerated for 154 days between his arrest and sentencing. Under section 4019, defendant was entitled to 154 days of custody credits. (§ 4019, subd. (f) ["[A] term of four days will be deemed to have been served for every two days spent in actual custody."].") Accordingly, we modify the judgment to award defendant an additional 131 days of presentence custody credits, for a total of 308 days' credit. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered."].)
E. Abstract of judgment
The abstract of judgment indicates that the trial court imposed a $120 "Court Security Fee" under section 1465.8. We agree with the parties that the trial court did not impose that fine and, accordingly, it should be deleted from the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court can strike clerical errors in the record].).
IV.
DISPOSITION
The judgment is modified to reflect that defendant is entitled to 308 days of presentence custody credits. As modified, the judgment is affirmed. The trial court is directed to correct the abstract of judgment (1) to reflect that defendant is entitled to 308 days of presentence custody credits and (2) by deleting the $120 Court Security Fee. The trial court is directed to issue an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.