Opinion
B291485
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. HERZON GALVAN, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA463837) APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed in part; reversed in part and remanded with directions. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
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Herzon Galvan appeals from a judgment entered after the jury convicted him of two counts of assault with a firearm, discharging a firearm with gross negligence, felony carrying a concealed firearm, and felony vandalism. The jury also found true as to the assault counts that Galvan personally used a firearm. On appeal, Galvan only challenges his conviction of carrying a concealed firearm (count 5). We conclude substantial evidence supports Galvan's conviction of this offense, and on this basis we reject his contention his attorney was ineffective for not moving for a judgment of acquittal. But we agree, as the People concede, there is insufficient evidence to support the special allegation under Penal Code section 25400, subdivision (c)(6), the firearm was not registered to Galvan, which elevated the offense to a felony.
Further undesignated statutory references are to the Penal Code.
Galvan also contends the trial court violated his due process rights by failing to hold an ability-to-pay hearing before imposing court assessments and restitution fines, relying on this court's opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We affirm Galvan's conviction of carrying a concealed firearm but reverse the sentence with directions to the trial court to impose a misdemeanor sentence on count 5. On remand, the trial court should allow Galvan to request a hearing and present evidence demonstrating his inability to pay the court assessments and restitution fines imposed by the trial court. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution Case
1. Discharging a firearm with gross negligence and felony vandalism (counts 1 and 6)
On December 20, 2017 at approximately 7:30 p.m. Cipriano Pelayo and his wife were sitting in their parked car waiting for their granddaughter, who was attending a taekwondo class. Pelayo heard two to three gunshots, followed by glass shattering from the car parked behind his car. Pelayo saw Galvan pointing a gun at people as Galvan walked down the sidewalk on Martin Luther King, Jr. Boulevard. Pelayo called 911.
2. Assault with a firearm (counts 2 and 3)
The same evening, also around 7:30 p.m., Gerardo Luna and his girlfriend, Karla Vasquez, were walking to Luna's car parked in front of the taekwondo school. Luna heard three gunshots and saw Galvan walking on the sidewalk heading toward him and Vasquez. Galvan had a gun in his right hand about eight to 10 feet away. Luna and Vasquez got into Luna's car. As Galvan walked by the car, he pointed the gun at Luna and Vasquez through the passenger window. After Galvan walked away, Luna and Vasquez called the police. A short time later, Luna and Vasquez heard one to three more gunshots.
3. Carrying a concealed firearm (count 5)
Los Angeles Police Officer Julio Aguilar and his partner responded to the 911 calls. Several witnesses flagged down Officer Aguilar and provided him with a physical description of the gunman. The officers found Galvan in the middle of the block on Martin Luther King, Jr. Boulevard, holding a gun in his right hand. When Officer Aguilar approached, Galvan "put the gun in his waistband."
At trial the prosecutor asked Officer Aguilar whether Galvan covered the gun with his shirt or "just place[d] it in his waistband," to which Officer Aguilar responded, "I remember him putting it in his waistband, his right side." Officer Aguilar and his partner then ordered Galvan to get on the ground, and Galvan complied. Officer Aguilar arrested Galvan and searched him, finding a loaded .45-caliber Glock gun with one bullet in the chamber and five live rounds in the magazine. The gun was in good working condition. B. The Defense Case
Galvan testified that on the evening of December 20, 2017 he was carrying a gun as he walked east on the sidewalk of Martin Luther King, Jr. Boulevard on his way home. He carried a gun for self-defense because he had "been shot at several times in [his] life," and a couple was recently murdered outside his house. Galvan knew it was unlawful to carry the gun.
Galvan stopped at a convenience store to purchase a pack of cigarettes. He forgot his wallet, so he asked a group of three men for a dollar. One of the men responded, "I don't have a dollar, but I like your ring." The man lifted up his shirt and displayed a weapon. Galvan got scared, stepped back, and drew his gun. The three men pushed past Galvan and ran.
Galvan was "panicked," and he "placed [his] weapon in [his] waistband" and ran down the street. He heard gunshots behind him, so he quickly ran for cover behind a car. Galvan saw the man who tried to rob him approach with his weapon aimed at Galvan. As the man came toward him, Galvan stepped out and fired two rounds at the man. The man staggered and ran toward a vehicle that had been trailing him, with its rear right passenger door open. Galvan retreated, but when the vehicle passed him, one of its occupants fired at him. Galvan fired back twice, then the vehicle drove off. Galvan did not see any pedestrians that evening, and he denied pointing his gun at any of the witnesses who testified.
On cross-examination, Galvan testified he did not tell the police officers about the men he encountered at the convenience store because he "did not want to admit to being involved in a shooting." The prosecutor asked Galvan whether his gun was registered to him. Galvan responded, "Yes. It should have been." Galvan explained, "I purchased [the gun] from my teacher and . . . security officer Steven Louis. It was a transaction between one of his old students and I. I gave him the money. He gave me the weapon. He had me sign paperwork that stated that ownership would be transferred from his old student to me. He told me that was all I needed to do. And I believed for the last six years the weapon was in my name." The prosecutor then asked, "So I have a document certifying that weapon is registered to someone named Rodney Bingly. That would be incorrect?" Galvan responded, "It should be incorrect, yes." The prosecutor did not introduce into evidence a document showing registration of the firearm. C. The Verdicts and Sentence
The jury found Galvan guilty of two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2 and 3); discharging a firearm with gross negligence (§ 246.3, subd. (a); count 1); felony carrying a concealed firearm on his person (§ 25400, subd. (a)(2); count 5); and felony vandalism (§ 594, subd. (a); count 6). As to counts 2 and 3, the jury found true that Galvan personally used a firearm (§ 12022.5, subd. (a)).
The information charged Galvan with two additional counts of assault with a firearm (counts 4 and 7). The jury deadlocked on count 4 and found Galvan not guilty on count 7.
The trial court sentenced Galvan to an aggregate term of 12 years in state prison. The court selected count 2 for assault with a firearm as the base term and imposed the lower term of two years, plus 10 years for the firearm enhancement. The court ordered the sentences on counts 1, 3, 5, and 6 to run concurrent with the sentence on count 2. On count 1 for discharge of a firearm with gross negligence, the court imposed the upper term of three years. On count 3 for assault with a firearm, the court imposed the lower term of two years, plus 10 years for the firearm enhancement, for a total of 12 years. On count 5 for carrying a concealed firearm, the court imposed the upper term of three years. The court likewise imposed the upper term of three years on count 6 for felony vandalism.
On remand, the court clerk should correct the abstract of judgment to reflect that the firearm enhancement (§ 12022.5, subd. (a)) was found true on counts 2 and 3, not count 1.
The court imposed a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) for each of the five counts, for a total of $150 in court facilities assessments and $200 in court operations assessments. The court also imposed the minimum restitution fine of $300 (§ 1202.4, subd. (b)) and imposed and suspended a parole revocation restitution fine in the same amount (§ 1202.45). In addition, the court ordered Galvan to pay $520 in victim restitution. At sentencing, Galvan did not object to imposition of the assessments and fines or raise his inability to pay.
The trial court orally imposed a $30 court facilities assessment and a $40 court operations assessment. However, the minute order and abstract of judgment state the assessments were imposed on all five counts (as required by the statutes). (§ 1465.8, subd. (a)(1)); Gov. Code, § 70373, subd. (a)(1).)
The owner of the car that had its passenger window shattered testified she paid $520 to repair the window.
Galvan timely appealed.
DISCUSSION
A. Galvan Has Not Shown Ineffective Assistance of Counsel Because Substantial Evidence Supports His Conviction of Carrying a Concealed Firearm
Galvan asserts his trial attorney provided ineffective assistance of counsel because she failed to move for a judgment of acquittal under section 1118.1 on count 5 for carrying a concealed firearm. To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to show (1) his or her "'"'counsel's representation fell below an objective standard of reasonableness under prevailing professional norms'"'" and (2) he or she "'"'suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.'"'" (People v. Johnson (2016) 62 Cal.4th 600, 653; accord, People v. Mickel (2016) 2 Cal.5th 181, 198; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.) Because we conclude substantial evidence supports Galvan's conviction on this count, Galvan did not meet his burden to show his attorney's failure to seek an acquittal under section 1118.1 fell below an objective standard of reasonableness or caused Galvan to suffer prejudice.
Section 1118.1 provides in part, "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." As the Supreme Court held in People v. Gomez (2018) 6 Cal.5th 243, "'"'The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.'"'" (Id. at p. 307; accord, People v. Cole (2004) 33 Cal.4th 1158, 1224 [§ 1118.1 motion challenges the sufficiency of the evidence].)
1. Standard of review
"In evaluating a claim regarding the sufficiency of the evidence, we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 ["'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.'"].) "'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.' [Citations.] 'We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (Westerfield, at p. 713; accord, Penunuri, at p. 142 ["'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'"].)
2. Substantial evidence supports the jury's finding Galvan carried a concealed firearm
Section 25400, subdivision (a)(2), provides, "A person is guilty of carrying a concealed firearm when the person does any of the following: [¶] . . . [¶] (2) [c]arries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person." Galvan contends there was insufficient evidence that when he placed the gun in his waistband he covered it with his shirt, and therefore the jury could only speculate whether the gun was concealed. Galvan points to the prosecutor's question whether Galvan covered up the gun with his shirt or just placed it in his waistband, to which Officer Aguilar responded, "I remember him putting it in his waistband, his right side."
Contrary to Galvan's contention, substantial concealment of a firearm is sufficient to support a conviction under section 25400, subdivision (a)(2). (People v. Wharton (1992) 5 Cal.App.4th 72, 75 [rejecting argument that knife was not concealed because the tip protruded from defendant's pocket]; People v. Fuentes (1976) 64 Cal.App.3d 953, 955 ["The dirk was in [defendant's] waistband. The mere fact that some portion of the handle may have been visible makes it no less a concealed weapon."]; People v. Hale (1974) 43 Cal.App.3d 353, 356 ["[o]nly partial concealment of a firearm is required" for violation of carrying a firearm concealed in a vehicle]; People v. May (1973) 33 Cal.App.3d 888, 890-891 [handgun visible to officer through defendant's open pocket was concealed weapon]; People v. Koehn (1972) 25 Cal.App.3d 799, 801, 806, 802 [affirming defendant's conviction for carrying a pistol concealed in a vehicle where "the handle of the loaded gun was protruding from the front seat and was observed by [an officer] as he looked through the windshield"]; see People v. Tarkington (1969) 273 Cal.App.2d 466, 469 ["[A]ppellant's ineptness in accomplishing complete concealment of the weapon did not relieve him from commission of the crime in the presence of the officers."]; CALCRIM No. 2520 [to prove the defendant guilty of carrying a concealed weapon, the People must prove the weapon "was substantially concealed on the defendant's person."].)
Viewing the evidence in the light most favorable to the judgment, Galvan's placement of his gun in his waistband constituted substantial evidence supporting his conviction of carrying a concealed firearm based on his substantial concealment of the firearm, regardless of whether his shirt fully covered the firearm. (People v. Westerfield, supra, 6 Cal.5th at p. 713; People v. Penunuri, supra, 5 Cal.5th at p. 142.) B. Remand Is Warranted for the Trial Court To Impose a Misdemeanor Sentence for Carrying a Concealed Firearm
The information charged Galvan in count 5 with felony violation of section 25400, subdivision (a)(2), specially alleging "that the firearm and unexpended ammunition were in the immediate possession of, and readily accessible to, the defendant and that the firearm was not registered to the defendant." The offense of carrying a concealed firearm is punishable as a misdemeanor or felony, depending on whether one of six special circumstances is proven. (See § 25400, subd. (c)(1)-(6).) Under section 25400, subdivision (c)(6), the offense may be punished as a felony if the firearm and unexpended ammunition are readily accessible to the defendant (or the firearm is loaded), and the defendant is not the registered owner of the firearm. If one of the six special circumstances is not proven, the offense may only be punished as a misdemeanor. (§ 25400, subd. (c)(7).)
Section 25400, subdivision (c)(6), provides the offense of carrying a concealed weapon may be punished as a felony if: "(A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person[; and] [¶] (B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person."
Galvan contends, the People concede, and we agree there was insufficient evidence to support the sentence enhancement under section 25400, subdivision (c)(6). The People failed to prove Galvan was not the registered owner of the gun. On cross-examination, Galvan testified he filled out paperwork to transfer ownership when he purchased the gun through his teacher, and the gun should have been registered in his name. The prosecutor asked, "So I have a document certifying that weapon is registered to someone named Rodney Bingly. That would be incorrect?" Galvan answered, "It should be incorrect, yes." As the People acknowledge, the registration document was not admitted into evidence. Because there was insufficient evidence to support the sentence enhancement under section 25400, subdivision (c)(6), the trial court erred by imposing a felony sentence of three years in state prison. We remand for the trial court to impose a misdemeanor sentence on count 5 for carrying a concealed firearm. (§ 25400, subd. (c)(7).) C. Galvan Is Entitled to a Hearing on His Ability To Pay the Assessments and Fines
Galvan also contends and the People concede the trial court erred by not submitting the required factual findings to support the sentence enhancement under section 25400, subdivision (c)(6), to the jury. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 ["Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."]; accord, People v. Scott (2015) 61 Cal.4th 363, 404 ["'[U]nder the Sixth Amendment, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."'"].)
Galvan requests we remand the case for the trial court to conduct an ability-to-pay hearing in accordance with our opinion in Dueñas because he was indigent at the time of sentencing. We agree Galvan should have an opportunity on remand to request a hearing and present evidence demonstrating his inability to pay the assessments and revocation fines.
1. Dueñas and its progeny
In Dueñas this court concluded "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso).) In contrast to court assessments, a restitution fine under section 1202.4, subdivision (b), "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, at p. 1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly provides a defendant's inability to pay a restitution fine may not be considered as a "compelling and extraordinary reason" not to impose the statutory minimum fine. However, as this court held in Dueñas, to avoid the serious constitutional questions raised by imposition of such a fine on an indigent defendant, "although the trial court is required by . . . section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172; accord, Belloso, at p. 655.)
Several Courts of Appeal have applied this court's analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1035). Others have rejected the due process analysis (e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Sept. 14, 2019, S258946), or concluded the imposition of fines and fees should be analyzed under the excessive fines clause of the Eighth Amendment (e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]). The Supreme Court granted review of the decision in Kopp to decide the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"
Our analysis of restitution fines under section 1202.4, subdivision (b), also applies to parole revocation fines under section 1202.45, because these fines must be imposed "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).) --------
2. We decline to find forfeiture of Galvan's arguments under Dueñas
The People contend Galvan forfeited his objections to the trial court's imposition of the assessments and fines because he failed to object to their imposition at sentencing. However, at the time Galvan was sentenced, Dueñas had not yet been decided, and we have generally declined to find forfeiture based on a defendant's failure to object to fines and fees prior to our opinion in Dueñas. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano), "[N]o California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Accord, Belloso, supra, 42 Cal.App.5th at pp. 662; People v. Santos, supra, 38 Cal.App.5th at pp. 931-932; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; contra, People v. Ramirez (2019) 40 Cal.App.5th 305, 312 [defendant forfeited challenge by not objecting to the assessments and restitution fine at sentencing]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [same].) As in Castellano, we decline to find Galvan forfeited his constitutional challenge to the imposition of the assessments and restitution fines.
3. On remand Galvan is entitled to an opportunity to challenge imposition of the assessments and fines
The People contend the record does not support a remand for an ability-to-pay hearing because Galvan failed to show in the trial court he did not have the financial ability to pay the assessments and fines and failed to show he lacked the future earning capacity to pay, including from wages he would earn while in prison. The only information in the record regarding Galvan's ability to pay at the time of sentencing is that he was 29 years old and had an unknown employment history.
The People are correct Galvan must in the first instance request an ability-to-pay hearing and present evidence of his inability to pay the assessments and fines. (Castellano, supra, 33 Cal.App.5th at p. 490.) However, as discussed in the context of forfeiture, because Galvan was not aware of his ability to challenge the assessments and fines on due process grounds, we conclude he should have that opportunity on remand.
We reject the People's additional contention Galvan has not shown a due process violation because he has not demonstrated adverse consequences from imposition of the assessments and fines. As we explained in Castellano, "the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections." (Castellano, supra, 33 Cal.App.5th at p. 490.)
DISPOSITION
The judgment of conviction is affirmed. We reverse the sentence on count 5 for carrying a concealed firearm and remand for the trial court to impose a misdemeanor sentence. On remand, the trial court should allow Galvan to request a hearing and present evidence demonstrating his inability to pay the court facilities and court operations assessments, restitution fine, and parole revocation restitution fine. If Galvan demonstrates his inability to pay the assessments, it must strike them. If the trial court determines Galvan does not have the ability to pay the restitution fine and parole revocation restitution fine, it must stay execution of the fines.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.