Opinion
D075046
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. GAI DAVID WAL, Defendant and Appellant.
Rachel M. Ferguson, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, and Joseph C. Anagnos, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD277399, SCD266081 ) APPEAL from a judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed in part; reversed in part; remanded with directions. Rachel M. Ferguson, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gai David Wal of robbery (Pen. Code, § 211). Wal admitted that he committed his offense while on felony probation (§ 1203, subd. (k)).
Statutory references are to the Penal Code unless otherwise specified.
In case no. SCD266081, Wal pled guilty to one count of vandalism (§ 594, subds. (a)(b)(1)) and received probation as well as certain fines and fees.
The court sentenced Wal to prison for two years and imposed certain fines and fees, which are discussed in detail below. The court also revoked probation in Wal's prior vandalism case, sentenced Wal to two years in prison to run concurrently with his sentence for his robbery conviction, and referenced certain fines and fees Wal was to pay.
Wal appeals, contending (1) substantial evidence does not support his robbery conviction; (2) the trial court imposed a duplicative restitution fine when it revoked his probation in the vandalism case; and (3) the court violated his due process rights by imposing fines, assessments, and a fee without making a finding regarding his ability to pay.
We determine that Wal forfeited his objection to the imposition of fines, assessments, and fees by failing to object below. We also conclude his substantial evidence claim is without merit. However, we believe there is some ambiguity in the record regarding the restitution fee the court imposed when it revoked his probation in the vandalism case. Therefore, we remand this matter to the superior court to address this ambiguity in an amended abstract of judgment. Further, as discussed below, the amended abstract should also reflect the $39 fine the court levied under section 1202.5. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
Prosecution
On June 20, 2018, at about 4:45 a.m., Wal and his friend were hanging out inside a convenience store in downtown San Diego after a night of drinking. Believing Wal to be in the checkout line, the victim stood behind him. Wal screamed at the victim, "Don't F'ing stand behind me." The victim apologized, said he thought Wal was in line, and moved next to Wal, waiting for the next available cashier. Wal told the victim, "[T]he line's F'ing up there." Wal asked the victim, "You think us—'N' word—are here just to pick cotton[?]" As the victim waited in line, Wal yelled profanities and racial slurs at him. The victim could smell alcohol on Wal's breath, but Wall was not having any balance issues. Wal repeatedly told the victim to look him in the eyes. The victim complied out of fear that Wal "could get violent." Wal stood "uncomfortabl[y]" close to the victim as the victim paid for his coffee.
Wal and his friend followed the victim outside. Wal yelled, "Hey[!]" The victim stopped and turned around. Wal and his friend stood "[w]ithin a foot" of the victim. Wal put his hand on the victim's shoulder. In a stern tone, Wal told the victim that the victim had disrespected him by standing too close behind him and then taking too long to get in line. Wal told the victim that his disrespect was "going to cost" him and asked the victim how much money he had.
The victim took out his wallet and handed Wal a $5 bill. Wal took the $5 and said, "How much more you got? Give me it all." The victim gave Wal the rest of his cash, which was about $20. The victim gave him the money out of "fear" and because he "[f]igured it would end the situation."
Wal's friend said he saw "plastic" in the victim's wallet and told the victim that he wanted the victim to go back inside and withdraw more cash out of the ATM. The victim said no.
Wal asked the victim what else he had in his pockets. The victim emptied his pockets and responded that all he had was his wallet, keys, and a vape. Wal said, "Let me get that," referring to the vape. The victim said no. The victim tried to walk away, but Wal and his friend blocked the victim's path.
The victim's work supervisor, who had seen what was going on from across the street, approached the group to diffuse the situation. The victim tried to walk away again, but Wal pushed him up against a window. The supervisor put himself between the two men and the victim, and the victim was able to get away. After the victim left, Wal's violent behavior ceased. However, Wal got in the supervisor's face and was talking a lot, telling him what had happened inside the store. When the supervisor pulled out his phone, acting as if he was going to call the police, Wal and his friend left the area.
Defense
Wal testified in his own defense. He remembered only "bits and pieces" of what occurred during his interaction with the victim because he had spent the night out drinking and the alcohol affected his memory of the morning's events. Wal stated that his consumption of alcohol may have altered his mood, making him overreact and be more agitated and paranoid than normal.
Wal went to the convenience store on the subject morning to buy cigars, which he purchased. He started to feel uncomfortable in the convenience store when someone came to stand behind him. Wal explained that he feels nervous whenever someone is behind him because he was assaulted about five days before the subject incident, and he feared the possibility of being attacked again. Wal could not recall what was going through his mind when the victim stood behind him in the convenience store, but he did not recall ever thinking that he wanted to take money or property from the victim.
Wal only remembered "partially" what occurred outside with the victim. Wal testified that he did not recall asking the victim for any money. Rather, his "biggest memory" of his encounter with the victim was yelling at him and being upset with him about standing too close.
Wal felt like the alcohol he had consumed affected his behavior. He stated that he never intended to take anything from the victim against his will.
DISCUSSION
I
SUBSTANTIAL EVIDENCE OF ROBBERY
Wal contends the evidence at trial was insufficient to prove him guilty of robbery because he did not possess the requisite intent. We disagree.
We review a sufficiency of the evidence claim under the familiar and deferential substantial evidence standard of review. (See People v. Hicks (1982) 128 Cal.App.3d 423, 429.) Substantial evidence is evidence that is "reasonable, credible, and of solid value." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) In reviewing for substantial evidence, we presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (See People v. Lee (2011) 51 Cal.4th 620, 632.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 403.)
"When a jury's verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion." (People v. Brown (1984) 150 Cal.App.3d 968, 970 (Brown).) Whether the evidence presented at trial is direct or circumstantial, the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (See People v. Manibusan (2013) 58 Cal.4th 40, 92; Jackson v. Virginia (1979) 443 U.S. 307, 319.) Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (See People v. Dominguez (2010) 180 Cal.App.4th 1351, 1356.)
Robbery is the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) To prove robbery, the prosecution must establish the defendant took property from the victim "by means of force or fear with the specific intent to permanently deprive him of that property. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1176-1177.)
On the record before us, we conclude Wal's robbery conviction is supported by substantial evidence. While in the convenience store, Wal accosted the victim with curse words and racial epithets. He stood close to the victim as the victim paid for his coffee. When the victim left the store, Wal and his friend followed him. Based on Wal's proximity to the victim while the victim purchased his coffee, the jury could reasonably infer that Wal believed the victim had money on his person. After Wal yelled, "Hey" at the victim, the victim turned and saw both men approaching him. At that point, the victim was "imagining the worst." Wal and his friend stopped about a foot away from the victim. The victim testified that he felt "very uncomfortable." Wal, along with his friend, standing in close proximity to the victim supported an inference of intimidation, especially considering that Wal previously had verbally assaulted the victim in the convenience store and followed the victim out of the store with a friend. (See People v. Brew (1991) 2 Cal.App.4th 99, 104.) While in close proximity to the victim, Wal said the victim's disrespect was "going to cost" him. Wal then asked the victim how much money he had. In response, the victim pulled out his wallet and hoped that if he gave him "a couple bucks" "this would all go away." The victim gave Wal $5 and then Wal asked the victim, "How much more you got?" The victim then handed the rest of his cash to Wal. The victim testified that he gave the money to Wal out of "fear." During his encounter with the victim outside the convenience store, Wal even touched the victim on his shoulder "several times," which made the victim "pretty nervous."
Wal suggests that his statement to the victim that the victim's disrespect was "going to cost" him "could have been taken as a physical threat just as easily as a request for property." Yet, in making this argument, Wal is simply asking this court to make a specific inference based on the evidence. This we cannot do. (See Brown, supra, 150 Cal.App.3d at p. 970.) A rational jury could reasonably infer that Wal's comment that the victim's disrespect was "going to cost" him was a demand for money, especially when Wal asked the victim how much money he had immediately after making the "going to cost" comment. Moreover, after receiving the five dollars, Wal demanded more money from the victim. That demand itself was an employment of fear. (See People v. Morehead (2011) 191 Cal.App.4th 765, 775 ["An unlawful demand can convey an implied threat of harm for failure to comply, thus supporting an inference of the requisite fear"].) As such, substantial evidence supports the jury's conclusion that Wal employed fear with the intent to take the victim's property and was properly convicted of robbery.
II
THE RESTITUTION FINE RELATING TO THE VANDALISM CASE
On May 4, 2016, after Wal pled guilty in his vandalism case, the trial court imposed a restitution fine in the amount of $300 under section 1202.4, subdivision (b). On December 4, 2018, when Wal was sentenced for his robbery conviction, the court revoked his probation on his vandalism case, sentenced Wal to prison for two years, and noted that the fines were "300 and 300 and 300." The court also stated, "All other fees and fines will be the minimum as required by law." And the abstract of judgment filed after Wal's conviction of robbery indicates, among other things, a restitution fine of $300 under section 1202.4, subdivision (b) in relation to the vandalism case. The minutes also contain the following handwritten notation: "All previous fines, fees + costs previously imposed are now due."
Wal argues the trial court in his robbery case improperly levied the restitution fine under section 1202.4, subdivision (b) based on his vandalism conviction because that fine had already been imposed after he pled guilty to vandalism in 2016. Because Wal had already pled guilty to vandalism and the subject restitution fine was imposed, the court had no authority to impose an additional fine based on the same conviction on December 4, 2018. In response, the People claim the restitution fine was not duplicative. Rather, the People contend the trial court was merely confirming and/or acknowledging the fines that had previously been imposed. (See People v. Cropsey (2010) 184 Cal.App.4th 961, 965 (Cropsey).)
Here, although we believe it unlikely that the trial court imposed the $300 restitution fine under section 1202.4, subdivision (b) twice for Wal's vandalism conviction, we think the record is somewhat unclear on this point. Thus, in an abundance of caution, we will remand this matter back to the superior court on this issue so it can make explicit, in an amended abstract of judgment, that it is simply acknowledging the restitution fine from the previous vandalism case. In doing so, we urge the trial court to follow the guidance of Cropsey and ensure that the amended abstract of judgment only " 'reflect the restitution fine(s) previously imposed.' " (See Cropsey, supra, 184 Cal.App.4th at p. 966.)
III
THE IMPOSITION OF FINES AND FEES FOR WAL'S ROBBERY CASE
At sentencing, in regard to Wal's robbery conviction, the trial court imposed a $40 court operations assessment under Penal Code section 1465.8; a $30 conviction assessment per Government Code section 70373; a $154 criminal justice administration fee under Government Code section 29550; $445.28 in victim restitution under Penal Code section 1202.4, subdivision (f); a $300 restitution fine under Penal Code
section 1202.4, subdivision (b); and a $39 fine per Penal Code 1202.5, subdivision (a).
The trial court also imposed a $300 fine under section 12024.45, which is suspended unless parole is revoked.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Wal contends that imposition of these various fines, fees, and assessments, without a determination of his ability to pay, violated his constitutional right to due process. He contends his case should be remanded to allow the trial court to determine whether he has the ability to pay these amounts. Yet, as the People point out and Wal concedes, he did not object to the imposition of any of these fines or request an ability to pay hearing below. As such, as we explain, we conclude Wal forfeited the claimed Dueñas error.
Dueñas involved an indigent, disabled, and homeless mother of young children who, due to illness, did not complete high school and subsisted on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas objected on due process grounds to the trial court's imposition of various fines and fees. (Id. at p. 1162.) "The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments . . . ." (Id. at p. 1163.) In reversing, the Court of Appeal in Dueñas observed, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore 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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Courts of Appeal have reached different conclusions regarding the substantive merits of the Dueñas opinion as well as the question of whether a defendant forfeits any claim of error by failing to raise the issue in the trial court. Here, we find forfeiture based on the fact that Wal had the ability to object to the robbery fee—even before Dueñas was decided—but failed to do so. Where a statutory basis to object based on inability to pay exists, but a defendant fails to assert such a claim, the claim is forfeited. For example, in Gutierrez, this court held that a defendant who fails to object to a restitution fine above the statutory minimum forfeits any ability-to-pay argument. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We reasoned that the statute governing imposition of restitution fines "expressly permitted such a challenge" even before Dueñas. (Gutierrez, at p. 1033.) The Dueñas decision does not compel a different conclusion on the issue of forfeiture in such circumstances. (Ibid. ["[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine [above the statutory minimum] by failing to object."].) The same is true here, where Wal had the statutory right to request that the trial court consider his ability to pay the robbery fee (§ 1202.5, subd. (a)), but failed to do so. By failing to object to the robbery fee, or seek an ability to pay hearing prior to the court's imposition of the fee, Wal forfeited his challenge on appeal.
For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted November 26, 2019, S258946, and People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 disagreed with Dueñas, whereas the court in People v. Belloso (2019) 42 Cal.App.5th 647, 654-656 followed Dueñas. The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844. We need not address the validity of Dueñas given our conclusion here that Wal forfeited his claim of error.
For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134, 137-138, People v. Castellano (2019) 33 Cal.App.5th 485, 489, and People v. Jones (2019) 36 Cal.App.5th 1028, 1033 did not find forfeiture.
Per section 1202.5, subdivision (a), if a defendant is convicted of robbery, among other enumerated crimes, a trial court "shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§1202.5, subd. (a).)
Further supporting forfeiture here, Wal did not object or request an ability to pay hearing when the court assessed a criminal justice administration fee under Government Code section 29550. That section permits judicial consideration of a defendant's ability to pay. Moreover, the California Supreme Court has already held that failure to challenge this kind of fee at sentencing forfeits the claim on appeal. In People v. McCullough (2013) 56 Cal.4th 589, the defendant argued the trial court was required to consider his ability to pay before assessing him a booking fee under Government Code sections 29550 to 29550.2. (McCullough, at p. 590.) The court held the defendant had a statutory right to request a determination of his ability to pay, which he forfeited by failing to raise it at sentencing. (Id. at pp. 592-593, 599.) Wal also forfeited his current objection to the criminal justice administration fee by not raising it below. McCullough's forfeiture rule (rather than any principles announced in Dueñas) is determinative here.
Except for victim restitution, Wal's remaining fines and fees were mandatory regardless of ability to pay. (See Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1170.) But he plainly could have challenged over 33 percent of the total—$190 of $560—based on ability to pay. Presumably, if he would struggle to pay the full amount, objecting to 33 percent would be both significant and rational. (See, e.g., Gutierrez, supra, 35 Cal.App.5th at p. 1033.) For this reason, we conclude he forfeited his challenge to all the fines and fees assessed.
Because the $300 restitution fee per section 1202.45 was suspended, we did not add it to the total of Wal's fees and fines in analyzing forfeiture. However, even if we did include this amount, our analysis would remain unchanged.
We do not consider the court's award of victim restitution in our forfeiture analysis because victim restitution is not addressed by the court in Dueñas, and Wal's ability to pay victim restitution is not a proper factor to consider in setting a restitution award under section 1202.4, subdivision (f).) (See People v. Evans (2019) 39 Cal.App.5th 771, 776-777.)
In somewhat of a throw-away argument, Wal contends that if we find forfeiture on appeal, then of necessity his counsel provided ineffective assistance of counsel under the Sixth Amendment. Wal bears the burden of showing counsel's representation was defective, and he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 690.) The record does not establish either prong of the Strickland test. We have no idea why counsel did not raise the ability to pay issue. At sentencing, it appears that defense counsel was focused on the amount of prison time Wal was to receive, arguing the court should sentence Wal to two years as opposed to the three years the prosecution proposed. We have no idea whether the fines, fees, or assessments were of any consequence. And nothing enlightens us on the significance of any failure of Wal in the future to pay any of the amounts.
Our Supreme Court addressed the issue of establishing ineffective assistance of counsel on a silent record in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268. The court found it difficult to establish error or prejudice without a full record. The court suggested the defendant's remedy, if any, must be by way of a petition for habeas corpus. (Ibid.)
Finally, as noted by the People and not disputed by Wal, the abstract of judgment does not include the $39 fine under section 1202.5, subdivision (a) despite the court ordering the fine during sentencing. Because we already are remanding this matter back to the trial court to amend the abstract of judgment to make clear there were no duplicative fees imposed after revoking probation in the vandalism case, we also order the trial court to include the $39 robbery fine on the amended abstract.
DISPOSITION
This matter is remanded to the superior court to amend the abstract of judgment consistent with this opinion and forward the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. I CONCUR: GUERRERO, J. AARON, J., concurring in part.
I concur in Parts I and II of the majority opinion and concur in the result in Part III. Specifically, I would address Wal's claim of ineffective assistance of counsel on its merits and conclude that Wal cannot establish that his counsel provided ineffective assistance in failing to object to the trial court's imposition of various fines and fees.
In Dueñas (2019) 30 Cal.App.5th 1157, 1167 (Dueñas), the court held that due process precludes a trial court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant, in the absence of a determination that the defendant has the "present ability to pay" those assessments and fines. Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under Pen. Code, § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas, supra, at pp. 1164, 1167, 1172.)
More recently, however, another Court of Appeal opinion questioned whether "Dueñas's expansion of the boundaries of due process" to provide additional "protection not conferred by either [of Dueñas's] foundational pillars" is a "correct interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40 Cal.App.5th 320, 327, rev. granted Nov. 26, 2019, S258946 (Hicks); see People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 ["We find Dueñas was wrongly decided"].) In considering the issue, the Hicks court noted that Dueñas rests on "two strands of due process precedent," the first of which "secures a due process-based right of access to the courts" (italics omitted), and the second of which "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, 40 Cal.App.5th at pp. 325-326.) Hicks explains that neither of these strands "dictate[s]" Dueñas's result. (Id. at p. 326.)
Like the defendant in Hicks, Wal has not, to date, been denied access to the courts, nor does he face incarceration as a result of the imposition of the fines and fees that the trial court imposed. I would address Wal's claim of ineffective assistance of counsel on its merits and conclude that because "[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine" even as to a defendant who is unable to pay (Hicks, supra, 40 Cal.App.5th at p. 329), Wal cannot establish that his counsel provided ineffective assistance in failing to object to the imposition of the fines and fees.
AARON, J.