California Cases March 30, 2023: People v. Gonzales

Case Description

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NOT TO BE PUBLISHED

(Super. Ct. No. 21CR0064)

EARL, J.

Defendant Bryan Josue Antunez Gonzales appeals the trial court's denial of his request for probation and imposition of an aggregate prison term of three years eight months. He contends: (1) the trial court abused its discretion denying probation, and (2) his conviction for both stealing and receiving the same property was unlawful. Defendant requests: (1) remand to allow the trial court to reconsider the probation determination, and (2) reversal of his conviction for receiving stolen property.

We agree with the People that defendant forfeited the majority of his contentions related to the trial court's denial of probation, and his remaining arguments are without

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merit. Moreover, we concur with the parties that defendant's conviction for receiving stolen property must be reversed. Finally, our review has disclosed the trial court's erroneous staying of fees associated with counts stayed pursuant to Penal Code section 654. We will modify the judgment to correct these errors and will affirm the judgment as modified.

I

FACTUAL AND PROCEDURAL BACKGROUND

The People's information charged defendant with driving a car on the highway in the opposite direction of traffic during flight from a peace officer (Veh. Code, § 2800.4; count 1), driving with disregard for the safety of people or property while fleeing from a pursuing peace officer (Veh. Code, § 2800.2; count 2), driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 3), receiving a stolen vehicle (Pen. Code, § 496d; count 4), and possession of metal knuckles (Pen. Code, § 21810; count 5).

Defendant pled not guilty, waived his right to a jury trial, and the matter proceeded by court trial. Therein, the People presented evidence that the victim Perla L. started her 2018 CX-9 Mazda in the driveway of her home and left the car running. The Mazda was worth more than $30,000. She briefly reentered her home to say goodbye to her sons, and when she returned, the Mazda was gone. Perla L. immediately reported the theft. Her surveillance system showed defendant riding a bicycle by the house. He circled back to the Mazda and checked the car door. Finding it open, he abandoned his bike and drove away in the Mazda.

Within the hour, authorities pulled over the Mazda. After initially complying, defendant fled, and a pursuit ensued. As shown in dashcam footage played for the jury,

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defendant committed over 60 traffic violations while fleeing officers, including: running red lights and stop signs, driving at excess speeds, driving into oncoming traffic, driving over double yellow lines, and ramming through United States Forest Service gates. The pursuit ended when the Mazda collided with a flagpole, totaling the car. Authorities arrested defendant and recovered two sets of pipes joined to simulate guns and what the officer thought was metal knuckles from a backpack defendant was wearing upon his arrest. They also recovered bullets of multiple calibers from defendant's pants pocket and a paint or caulk gun handle with trigger from defendant's waistband.

Following the close of the prosecution's evidence, the trial court denied defendant's Penal Code section 1118 motion. Following argument by the parties, the court found defendant guilty as charged with the exception of the possession of metal knuckles charge. The court further found two factors in aggravation true beyond a reasonable doubt: (1) that the crime involved great violence, threat of great bodily harm, and a high degree of callousness (Cal. Rules of Court, rule 4.421(a)(1)), and (2) that the stolen Mazda had great monetary value (rule 4.421(a)(9)).

Thereafter, the probation department prepared a report recommending the denial of probation and an aggregate prison term of two years eight months. In support of that recommendation, the probation report noted defendant had a minimal criminal history (rule 4.414(b)(1)), but the crime had involved damage of great monetary value (rule 4.414(a)(5)), both in the $30,000 of damage to the victim's car as well as the damage defendant caused to United States Forest Service land access gates and South Lake Tahoe Police Department vehicles. Further, defendant's refusal to speak with the probation officer precluded an evaluation of defendant's suitability for probation and of any sense

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of culpability or remorse he might have. Defendant filed a sentencing memorandum asking for the court to impose a low term prison sentence, but did not request probation.

At the sentencing hearing, the People argued against a grant of probation and requested the court impose either a mid or upper term prison sentence. Defendant's attorney requested probation, highlighting his minimal record, that "he apparently successfully completed probation," and arguing that his refusal to speak with probation should not preclude his request. Defendant had refused on advice of counsel, who was concerned with jeopardizing defendant's chances on appeal. Moreover, defendant's attorney challenged the applicability of part of rule 4.421(a)(1), and alternatively, requested a low term sentence. Defendant otherwise submitted on probation's recommendations. The trial court then heard Perla L.'s victim impact statement.

In rendering judgment, the trial court explained it had considered the probation report, defendant's sentencing memorandum, and the arguments of counsel. Further having presided over the trial, the court was familiar with the evidence and had independently examined the pipes referenced in the trial testimony and another item resembling a caulking gun found on defendant at his arrest. Having done so, the court concluded they were intended to simulate weapons and that defendant had been on the prowl looking to commit crimes when the opportunity to steal the victim's car presented itself. This demonstrated "professionalism and sophistication" as well as a "high degree of viciousness or callousness." Defendant had further engaged in approximately 70 vehicle code violations, which put the officers and entire community at risk of harm. Because defendant refused to be interviewed, the court had no information from which to gauge his remorse or appreciation of the wrongfulness of his conduct, nor did the court have an explanation for the items found on him at his arrest. There was also no information in the record to support that defendant was amenable to probation.

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In explaining its decision to deny probation, the trial court highlighted its nonexclusive reliance upon 10 factors from the Rules of Court favoring denial. In addition, the court noted defendant had a minimal record, but there was no actual evidence defendant had successfully completed probation (rule 4.414(b)(2)), nor was there evidence of a willingness to participate in probation (rule 4.414(b)(3)) or of remorse (rule 4.414(b)(7)).

Ultimately, the trial court sentenced defendant to an aggregate prison term of three years eight months comprised of: the upper term of three years for count 1, plus the upper term of three years (stayed pursuant to Pen. Code, § 654) for count 2, plus eight months (one-third the midterm) for count 3, plus eight months (one-third the midterm stayed pursuant to Pen. Code, § 654) for count 4. The court also imposed a $2,400 restitution fine (Pen. Code, § 1202.4), a $2,400 parole revocation restitution fine (Pen. Code, § 1202.45), four $40 court operations assessment fees (Pen. Code, § 1465.8) and four $30 conviction assessment fees (Gov. Code, § 70373). The court stayed the court operations and conviction assessment fees associated with the counts stayed pursuant to Penal Code section 654. Defendant timely appealed, and appellate briefing in this matter was completed on January 17, 2023.

II

DISCUSSION

A. The Probation Denial

Defendant contends the trial court abused its discretion in denying his request for probation. Specifically, he argues the court failed to exercise "informed discretion" and the denial was based on factors not supported by the evidence or duplicative of elements

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of the offense. Agreeing with the People, we conclude most of defendant's arguments were forfeited and those remaining are not meritorious.

"A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. [Citation.] The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons,' [citation], but the rule does not apply when the sentence is legally unauthorized [citation]." ( People v. Gonzalez (2003) 31 Cal.4th 745, 751.) It is only if the trial court fails to give the parties any meaningful opportunity to object that the rule becomes inapplicable. ( Id . at p. 752.)

Here, the record indicates the trial court gave defendant a meaningful opportunity to object, and he failed to. Under the circumstances, most of his contentions are forfeited. Citing People v. Scott (1994) 9 Cal.4th 331 ( Scott II ), defendant argues his generic request for a lesser sentence and a grant of probation sufficiently preserved his arguments for appeal. We don't interpret Scott II as defendant does. In fact, we find People v. Scott (1978) 21 Cal 3d 284 ( Scott I ) to be more on point. Scott I held "An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. (Code Civ. Proc., §§ 646, 647; [citations].) In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. [Citations.]" ( Id. at p. 290.) The problem here is that in

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neither defense counsel's sentencing memorandum, nor in his comments at the sentencing hearing, did defense counsel object to the errors defendant now complains of on appeal. Namely, in sentencing defendant the trial court improperly relied on factors that were themselves elements of the offenses of which he was convicted, failed to consider certain mitigating factors, and relied on erroneous facts in determining the existence of certain aggravating factors. Having failed to object in the trial court with requisite specificity, we agree with the holding in Scott II that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." ( Scott II , at p. 356.)

Nonetheless, we recognize defendant argued prior to the court's decision that he had successfully completed probation and that his refusal to speak with the probation officer should not preclude the court from determining he was "a good candidate for probation." Assuming arguendo (as the People have done) that defendant's arguments leading up to the court's decision were sufficient to preserve his arguments concerning his prior probation performance, willingness to participate in probation, and possible remorse, we still find them without merit.

"All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise." ( People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]" ( Ibid .)" 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" ( People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on other grounds as stated in People v. Cook (2015) 60 Cal.4th 922, 927, 939.) The circumstances utilized by the trial court to support its sentencing choice

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need only be established by a preponderance of the evidence. ( Scott II, supra , 9 Cal.4th at p. 349.) "[I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." ( Weaver , at p. 1313.)

Here, defendant complains the trial court's determination that he failed to show a willingness to comply with probation (rule 4.412(b)(3)) and was not remorseful (rule 4.414(b)(7)) were speculative. On the contrary, given defendant's refusal to be interviewed by the probation department or to offer any other evidence on these issues, substantial evidence supports the court's negative inferences on these issues. That defendant now contends he refused to speak with the probation officer on advice of counsel does not alter this conclusion.

Nor do we agree with defendant's argument the trial court was arbitrary in rejecting defense counsel's representation that defendant had successfully completed a prior term of probation. While defendant's two attorneys represented that he "presumably" and "apparently" successfully completed probation (rule 4.414(b)(2)), defendant did not actually offer any affirmative evidence that he had done so. The trial court was not required to accept these representations as undisputable fact. (Cf. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463-1464 [trier of fact may reject uncontradicted testimony if there is a rational basis for doing so].)

Finally, we disagree with defendant's contention that the trial court failed to exercise "informed discretion." Nothing in the record suggests the trial court misunderstood its charge in determining whether to grant or deny probation. Rather, the trial court considered the probation report, defendant's sentencing memorandum, and the arguments of counsel. Further, as contemplated in rules 4.414 and 4.408(a), the court considered numerous criteria reasonably related to the decision when determining whether to grant defendant probation. ( People v. Weaver, supra , 149 Cal.App.4th at pp. 1312-1313.) Absent evidence to the contrary, we presume the trial court understood

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and applied the applicable law. (See, e.g., People v. Stowell (2003) 31 Cal.4th 1107, 1114.) That defendant disagrees with the applicability and weighing of these factors does not establish a failure to exercise informed discretion.

B. The Theft and Receiving Convictions

The parties agree, and we concur, that defendant's convictions for both stealing the Mazda (Veh. Code, § 10851, subd. (a); count 3) and receiving the stolen vehicle (Pen. Code, § 496d; count 4) violate the common law prohibition against dual convictions for stealing and receiving the same property. ( People v. Garza (2005) 35 Cal.4th 866, 874; People v. Ceja (2010) 49 Cal.4th 1, 4-5.)

Here, while the People alternatively pled that defendant drove or stole the Mazda, the People elected to proceed on the theft theory of the case. Despite this election, the trial court determined defendant violated Vehicle Code section 10851 on both theft and driving theories. Nonetheless, given the timing of defendant's actions, we conclude the driving cannot be separated from the theft, thus precluding the dual conviction. ( People v. Garza, supra , 35 Cal.4th at p. 880, fn. 2; People v. Strong (1994) 30 Cal.App.4th 366, 374.) Consistent with the Supreme Court's guidance in Ceja , we accede the parties' request to reverse defendant's conviction for receiving the stolen vehicle (count 4) to remedy this error. ( People v. Ceja, supra , 49 Cal.4th at pp. 3-4, 9-10.)

C. The Stayed Fees

When sentencing defendant, the trial court stayed the prison sentences associated with counts 2 and 4 pursuant to Penal Code section 654. In light of this, the court also stayed the two $40 court operations assessment fees (Pen. Code, § 1465.8) and two $30 conviction assessment fees (Gov. Code, § 70373) related to those counts. This was error, as these fees are not punishment, and thus, Penal Code section 654 does not apply to them. ( People v. Sencion (2012) 211 Cal.App.4th 480, 484.) Given our reversal of count 4, we will modify the judgment to strike the $40 court operations and $30 conviction

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assessment fees associated with that count and will lift the stay on the remaining set of fees associated with count 2.

III

DISPOSITION

Defendant's conviction for receiving a stolen vehicle (Pen. Code, § 496d; count 4) is reversed. We also modify the judgment to strike the $30 conviction assessment (Gov. Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8) fees associated therewith. We further modify the judgment to lift the stay imposed on the $30 conviction assessment (Gov. Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8) fees associated with count 2. The trial court shall prepare an amended abstract of judgment reflecting these changes and forward a certified copy of that document to the California Department of Corrections and Rehabilitation. The judgment is affirmed as modified.

We concur: RENNER, Acting P. J., BOULWARE EURIE, J.