Filed 7/29/16 P. v. Matthews CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068033
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD251244, SCD256358) VANNIL MATTHEWS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sharon B.
Majors-Lewis, Judge. Affirmed in part; reversed in part.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Scott C. Taylor and Daniel J. Hilton, Deputy Attorneys
General, for Plaintiff and Respondent. In 2014, a jury convicted Vannil Matthews for selling and possessing cocaine
(Health & Saf. Code, §§ 11352, subd. (a), 11351.5) and resisting an officer (Pen. Code,1
§ 69) in connection with a 2013 undercover drug transaction. (San Diego County
Superior Court No. SCD251244, herein, the drug case.) In 2015, Matthews pled guilty to
assault with a deadly weapon (§ 245, subd. (a)(4)) and misdemeanor delaying a peace
officer (§ 148, subd. (a)(1)) in connection with a 2014 incident. (San Diego County
Superior Court No. SCD256358, herein, the assault case.) At the sentencing hearing in
April 2015, the court imposed a 16-year, 8-month sentence in the drug case and a
concurrent 4-year sentence in the assault case. The court imposed restitution and parole
revocation fines (§§ 1202.4, 1202.45) of $10,000 in the drug case and $1,200 in the
assault case.
On appeal, Matthews challenges his conviction under section 69 and his
suspended sentence for cocaine possession in the drug case. He also challenges the
restitution fine imposed in both cases, claiming the court failed to consider his inability to
pay. We conclude the trial court committed sentencing error in the drug case by not
applying the amended sentencing statute for possession and by applying the status
enhancements under Health and Safety Code section 11370.2 twice in calculating his
total sentence. We further conclude Matthews suffered ineffective assistance when his
trial counsel failed to object to the $10,000 restitution fine in the drug case. We correct
these errors by reducing Matthews's suspended sentence for cocaine possession in the
1 Further statutory references are to the Penal Code, unless otherwise specified.
2 drug case from four years to three years and striking the second set of status
enhancements attached to that count. We also reduce the restitution fine and
corresponding parole revocation fine in the drug case from $10,000 to $280. In all other
respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Drug Case (No. SCD251244)
On October 2, 2013, an undercover officer handed Ronald Massey a "prerecorded"
$20 bill and asked for help purchasing a "dub," or $20 worth of rock cocaine.2 Massey
led the officer to Matthews. Matthews gave Massey a small item, stipulated at the
preliminary hearing to be a piece of rock cocaine, in exchange for the prerecorded $20
bill. The officer took the item from Massey and gave him a prerecorded $5 bill. The
officer signaled to uniformed San Diego police officers, who soon arrived at the scene. A
struggle ensued as Matthews tried to evade arrest.3 Officer Adam Schrom eventually
handcuffed Matthews and recovered the prerecorded $20 and $5 bills, a tan plastic bindle
containing 0.27 grams of cocaine base, and a white plastic bindle containing 2.39 grams
of cocaine base from the scene.
Matthews was charged with selling cocaine base (Health & Saf. Code, § 11352,
subd. (a) [count 1]), possessing cocaine base for purposes of sale (Health & Saf. Code,
2 At trial, the undercover officer testified the bill was photocopied before the sting operation to record its denomination and serial number.
3 To avoid repetition, we describe Matthews's struggle with Officer Schrom in the discussion section. 3 § 11351.5 [count 2]), and resisting an officer (Pen. Code, § 69 [count 3]). The
information alleged four drug sales priors and three prison priors. The court granted
Matthews's motion to bifurcate trial of the priors from trial on the charged offenses.
Proceedings were suspended twice in 2014 for competency determinations
(§ 1368), and the trial court found Matthews competent to stand trial both times. On
November 7, 2014, a jury convicted Matthews of all three counts. At a separate hearing,
the court made a true finding as to all four sales priors and all three prison priors alleged
in the information.
B. Assault Case (No. SCD256358)
Matthews was briefly released in May 2014, while proceedings in the drug case
remained pending. Days after his release, on May 30, 2014, Matthews stood in the
middle of the street shirtless, pacing, and growling. He swung a 6-foot pole weighing
between 50 and 75 pounds at passing vehicles and pedestrians and hurled it at a car,
narrowly missing a driver. When San Diego Police arrived, Matthews charged at the
police vehicle, pounded on the window, and tried to lift the front of the vehicle while
making growling noises. Officers tried, without success, to demobilize him with a
beanbag shotgun. They used Tasers to eventually take him into custody.
Matthews was charged by information, but the case ended in a mistrial. On March
23, 2015, the date set for retrial, Matthews pled guilty to charges of felony assault (§ 245,
subd. (a)(4)) and misdemeanor resisting an officer (§ 148, subd. (a)(1)).
4 C. Sentence and Appeal
On April 22, 2015, the court held a sentencing hearing in both cases and adopted
the recommendations in the probation officer's reports. While recognizing Matthews had
obvious mental health problems, exacerbated by substance abuse, the court ruled his
guilty plea for felony assault precluded probation and imposed a lengthy prison term.
In the drug case, the court imposed a sentence of 4 years for sale of a controlled
substance (Health & Saf. Code, § 11352, subd. (a)), with a consecutive 8-month term for
resisting arrest (Pen. Code, § 69). The court imposed three consecutive 3-year terms for
the sales priors (Health & Saf. Code, § 11370.2, subd. (a)) and three 1-year terms for the
three prison priors (Pen. Code, § 667.5, subd. (b)).4 The court imposed a 4-year sentence
for possessing a controlled substance for sale (Health & Saf. Code, § 11351.5), with three
3-year enhancements for the sales priors (Health & Saf. Code, § 11370.2, subd. (a)), and
stayed that sentence pursuant to Penal Code section 654.5 Finally, the court imposed a
restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)) and a parole revocation fine in
the same amount (Pen. Code, § 1202.45).
4 Although the court made a true finding on all four sales priors in the drug case, it did not impose additional prison time as to the fourth sales prior.
5 Section 654 prohibits double punishment for an indivisible course of conduct. (See People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253; People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
5 In the assault case, the court imposed an upper term of 4 years for felony assault
(§ 245, subd. (a)(1)), to run concurrent to his sentence in the drug case. The court
sentenced Matthews to 365 days for misdemeanor delaying an officer (§ 148, subd.
(a)(1)), with credit for time served. Finally, the court imposed a restitution fine of $1,200
(§ 1202.4, subd. (b)) and a parole revocation fine in the same amount (§ 1202.45).6
Matthews timely appealed.7
DISCUSSION
Matthews challenges his conviction for resisting an officer (§ 69), his sentence for
drug possession (Health & Saf. Code, § 11351.5), and status enhancements to his
sentence for drug possession (Health & Saf. Code, § 11370.2) in the drug case. He also
challenges the restitution fines imposed in both cases. We address his arguments in turn.
I.
CONVICTION FOR RESISTING AN OFFICER (§ 69)
In the drug case, the jury convicted Matthews of resisting an officer, in violation
of section 69. Matthews argues his conviction should be reversed on several grounds.
First, he contends the court's use of a modified version of CALCRIM No. 2652
erroneously allowed the jury to convict if it found Matthews resisted Officer Schrom by
"threat," rather than by "force or violence." He argues his challenge is cognizable on
6 The court also imposed fines and fees that are not germane to this appeal.
7 Matthews challenges both his conviction and sentence. "In a criminal case, judgment is rendered when the trial court orally pronounces [the] sentence." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Matthews's appeal, filed 15 days after his sentence, is timely. (Cal. Rules of Court, rule 8.308(a).) 6 appeal, despite his attorney's failure to object below. Alternatively, Matthews argues he
suffered ineffective assistance of counsel when his attorney failed to object to the
modified instruction. Second, Matthews argues substantial evidence does not support his
conviction for resisting an officer. Each of these contentions lacks merit.
A. Legal Principles and Background
Section 69 imposes criminal liability for "[e]very person who attempts, by means
of any threat or violence, to deter or prevent an executive officer from performing any
duty imposed upon such officer by law, or who knowingly resists, by the use of force or
violence, such officer, in the performance of his duty." The statute encompasses two
separate offenses. (In re Manuel G. (1997) 16 Cal.4th 805, 814.) "The first is attempting
by threats or violence to deter or prevent an officer from performing a duty imposed by
law; the second is resisting by force or violence an officer in the performance of his or
her duty." (Ibid.) The two violations are labeled "attempting to deter" an officer and
"actually resisting an officer." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530;
People v. Carrasco (2008) 163 Cal.App.4th 978, 984.)
The two violations have distinct elements. (People v. Lopez, supra, 129
Cal.App.4th at p. 1530.) "Attempting to deter" requires a specific intent to interfere with
the officer's performance of his or her duties and can be established by a threat,
unaccompanied by any physical force. (In re Manuel G., supra, 16 Cal.4th at p. 814;
People v. Nishi (2012) 207 Cal.App.4th 954, 967.) By contrast, "actually resisting an
officer" is a general intent crime that requires the use of force or violence. (People v.
7 Rasmussen (2010) 189 Cal.App.4th 1411, 1418.) CALCRIM No. 2651 pertains to
"attempting to deter"; CALCRIM No. 2652 pertains to "actually resisting an officer."
The information alleged both types of offenses in count 3, but at trial, the
prosecution relied solely on the theory Matthews actually resisted Officer Schrom.
CALCRIM No. 2652 instructs a jury to evaluate whether the defendant "unlawfully used
force or violence to resist an executive officer." However, the prosecutor gave the court a
modified version of CALCRIM No. 2652 that instructed the jury to evaluate whether
Matthews, "unlawfully, by means of any threat or violence, used force or violence to
resist an executive officer." (Italics added.) Matthews's counsel did not object to the
modified instruction, and the court approved it and read it to the jury.
B. Any Instructional Error Was Not Prejudicial and Did Not Result in Ineffective Assistance of Counsel
Matthews contends the trial court committed reversible error by reading the
modified version of CALCRIM No. 2652 to the jury. He claims the modified instruction
allowed the jury to convict based solely on a "threat," rather than "force or violence."
The People contend Matthews forfeited his challenge by failing to object below.
" 'Generally, a party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.' [Citations.] But that rule does not apply
when, as here, the trial court gives an instruction that is an incorrect statement of the
law." (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) We review the merits of any
claim of instructional error that allegedly affects Matthews's substantial rights,
8 irrespective of whether Matthews's counsel objected below. (§ 1259; People v. Brown
(2012) 210 Cal.App.4th 1, 9 fn. 5.)
Turning to the merits, we conclude any instructional error was not prejudicial.
Instructional error is normally subject to a Watson test for prejudice, which requires
reversal if " 'it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.' " (People v. Watson (1956) 46
Cal.2d 818, 837.) However, instructional error affecting an element of the charged
offense is subject to the Chapman standard, requiring reversal unless the error is harmless
beyond a reasonable doubt. (People v. Wilkins (2013) 56 Cal.4th 333, 350; Chapman v.
California (1967) 386 U.S. 18, 24.) Under either standard, we conclude the insertion of
the phrase, "by means of any threat or violence" in CALCRIM No. 2652 did not cause
prejudice.
Matthews claims it was critical the jury was instructed of the "force or violence"
requirement under section 69 because it was his defense at trial that he had not used any
force or violence. However, the court did instruct the jury it had to find Matthews "used
force or violence" to resist Officer Schrom. That the court also instructed the jury it had
to find he used force or violence "by means of any threat or violence" was harmless; the
superfluous clause did not eliminate or alter the requirement for the jury to find "force or
violence." (See People v. Watt (2014) 229 Cal.App.4th 1215, 1220 ["if the issue was
necessarily decided under other instructions given, reversal is not required"].)
Moreover, the evidence Matthews used force to resist Officer Schrom was
overwhelming and uncontroverted. When Officer Schrom arrived, Matthews started 9 walking away. Officer Schrom exited his vehicle, identified himself, and ordered
Matthews to stop, but Matthews kept walking. Officer Schrom put his hand on
Matthews's shoulder; Matthews ducked under the officer's arm. Officer Schrom grabbed
Matthews's shirt, but Matthews backed up, raising his arms into a potential "fighting
position." Officer Schrom then redirected Matthews to the ground. Matthews tried to
push and roll the officer off him "so he could push up on all fours and stand up." Officer
Schrom had to knee Matthews in the side three times because he was trying to get away.
Another officer helped Officer Schrom handcuff Matthews; they "had to pretty much
carry him over to the car" because Matthews continued resisting. Once they reached the
car, Matthews pressed his body against the vehicle to hamper their search. Matthews
presented no evidence at trial to rebut this testimony.
Absent prejudice, Matthews also cannot demonstrate a violation of his Sixth
Amendment right to effective assistance of counsel. A defendant claiming ineffective
assistance must show objectively deficient performance by trial counsel and prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43
Cal.3d 171, 216-218 (Ledesma).) "[P]rejudice must be established as ' "a 'demonstrable
reality,' not simply speculation as to the effect of the errors or omissions of counsel." ' "
(People v. Montoya (2007) 149 Cal.App.4th 1139, 1151; see People v. Fairbank (1997)
16 Cal.4th 1223, 1241.) Matthews does not meet that burden. (See People v. Vines
(2011) 51 Cal.4th 830, 876 ["even assuming for the sake of argument that trial counsel
rendered deficient performance, defendant's claim would still fail for lack of prejudice"].)
10 C. Substantial Evidence Supports the Conviction Under Section 69
We likewise reject Matthews's contention his conviction should be reversed
because there was insufficient evidence to prove the "force or violence" element of
section 69. "[F]orceful resistance of an officer by itself gives rise to a violation of section
69." (People v. Bernal (2013) 222 Cal.App.4th 512, 520.) Uncontroverted evidence of
Matthews's forceful attempt to escape from Officer Schrom plainly supports his
conviction. (Ibid.)
Matthews's authorities do not suggest otherwise. People v. Martin (2005) 133
Cal.App.4th 776 explained that a defendant's purpose in using force or violence is
immaterial; hence, a defendant who "jerked his body backwards and wrapped his leg
around" an officer's leg in order to avoid arrest used force or violence within the meaning
of the statute. (Id. at pp. 780, 782-783.) People v. Carrasco, supra, 163 Cal.App.4th 978
held a defendant who "had to be physically taken to the ground" and was " 'yelling,
kicking, [and] cussing' " while squirming resisted an officer through force. (Id. at
pp. 985-986 ["if appellant resisted the officers at all, he did so forcefully"].) People v.
Bernal, supra, 222 Cal.App.4th 512 cited those two cases and concluded "force used by a
defendant in resisting an officer's attempt to restrain and arrest the defendant is sufficient
to support a conviction." (Id. at p. 519.) Matthews refused to obey orders, had to be
physically taken to the ground, and tried to push up and roll from underneath Officer
Schrom to avoid arrest. He continued resisting after he was handcuffed and required two
officers to carry him to the car. Such evidence plainly supports his conviction under
11 section 69. (People v. Bernal, supra, 222 Cal.App.4th at p. 519.; People v. Carrasco,
supra, 163 Cal.App.4th at pp. 985-986.)
Matthews points to evidence the arrest took only 20 seconds and that Officer
Schrom did not deploy a Taser or get injured. He repeats his argument below that he
tried to roll from under Officer Schrom to avoid being kneed. However, our inquiry is
limited to determining " 'whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.' " (People v. Holt (1997) 15 Cal.4th 619, 667.) We
draw all reasonable inferences in support of the judgment and do not reweigh the
evidence on appeal. (People v. Abillar (2010) 51 Cal.4th 47, 60.) Substantial evidence
supports Matthews's conviction under section 69.
II.
SENTENCE FOR DRUG POSSESSION (HEALTH & SAF. CODE, § 11351.5)
In sentencing Matthews in April 2015, the trial court stated its intention to impose
a middle term for his conviction on count 2 for drug possession (Health & Saf. Code,
§ 11351.5).8 Over defense objection, the court applied the sentencing scheme in place at
the time of the 2013 drug offense, not the amended statute in effect at the time of
sentencing. The retroactive application of a statutory amendment is a pure question of
8 Health and Safety Code, section 11351.5 provides: "Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base . . . shall be punished by imprisonment . . . for a period of two, three, or four years."
12 law, subject to independent review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.)
We agree with both parties this was error.
At the time of Matthews's offense, the statute imposed imprisonment "for a period
of three, four, or five years" for the possession of cocaine for sale. Effective January 1,
2015, the Legislature amended the term to "two, three, or four years." By reducing the
sentence, the Legislature sought to equalize penalties for possession for sale of cocaine
base and powder cocaine. (Sen. Bill No. 1010 (2013-2014 Reg. Sess.) §§ 1-2.)9
In general, legislative enactments are presumed to operate prospectively, unless
express language or "a clear and compelling implication" compel retroactive application.
(People v. Vinson (2011) 193 Cal.App.4th 1190; People v. Alford (2007) 42 Cal.4th 749,
753-754.) However, "[w]hen the Legislature amends a statute so as to lessen the
punishment, it has obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply." (In re Estrada (1965) 63
Cal.2d 740, 744-745.) Thus, absent a savings clause, an amendment that mitigates
punishment "will operate retroactively so that the lighter punishment is imposed" so long
9 (See generally, Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1010 (2013-2014 Reg. Sess.) as amended Aug. 11, 2014, p. 6 ["disparate sentencing guidelines for two forms of the same drug has resulted in a pattern of institutional racism . . . despite comparable rates of usage and sales across racial and ethnic groups"].)
13 as judgment was not yet final when the amendment took effect.10 (Id. at pp. 745, 748
[defendant entitled to benefit of amended sentencing statute]; see Nasalga, supra, 12
Cal.4th at pp. 797-798 [same]; People v. Vinson, at p. 1199 [same].)
The amendment to Health and Safety Code section 11351.5 contains no savings
clause or clear indication the Legislature intended only prospective application. The
Legislature's aim was to mitigate punishment for those convicted of possessing cocaine
base for sale. (Sen. Bill No. 1010 (2013-2014 Reg. Sess.) § 2.) Adhering to Estrada and
Nasalga, we conclude Matthews was entitled to receive the benefit of the amendment,
and the trial court's decision not to grant that benefit was erroneous.
Remand is unnecessary because the trial court explained how it intended to
exercise its sentencing discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944;
People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1986.) The court sought to impose the
middle sentence, finding the crime did "not warrant the lower term" but was "not more
extraordinary than any other sales case of this nature." Under the amended statute, the
middle term is three years, not four. (Health & Saf. Code, § 11351.5.) We therefore
modify the judgment to reduce the suspended sentence for count 2 in the drug case to
three years.
10 For purposes of determining the retroactivity of an amendment to a criminal statute, a judgment is not final until the time to petition for writ of certiorari before the United States Supreme Court has passed. (People v. Nasalga (1996) 12 Cal.4th 784, 789 fn. 5 (Nasalga); People v. Vieira (2005) 35 Cal.4th 264, 306.) 14 III.
STATUS ENHANCEMENTS TO SENTENCE FOR DRUG POSSESSION (HEALTH & SAF. CODE, § 11370.2)
In the drug case, the trial court attached three 3-year enhancements for Matthews's
prior drug convictions to the sentence for count 1, pursuant to Health and Safety Code
section 11370.2, subdivision (a).11 It then imposed and stayed these same enhancements
as to count 2. We agree with both parties this was error.
Health and Safety Code section 11370.2 enhancements are status enhancements,
"related to the offender, not to the particular counts." (People v. Tillotson (2007) 157
Cal.App.4th 517, 542.) As such, they "may be imposed only once in arriving at an
aggregate sentence." (Ibid.; see People v. Edwards (2011) 195 Cal.App.4th 1051, 1059
["in the absence of any express intention to create an exception to the rule that status
enhancements apply only once, regardless of the number of counts of the conviction, we
must presume that the Legislature did not intend that section 11370.2 enhancements
attach to each qualifying count"].) Because the court applied the status enhancements to
count 1 in the drug case, we strike the second set of status enhancements attached to the
suspended sentence for count 2.
11 Health and Safety Code section 11370.2, subdivision (a) provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." 15 IV.
RESTITUTION (§ 1202.4)
The trial court imposed restitution fines of $10,000 in the drug case and $1,200 in
the assault case (§ 1202.4). The court also imposed suspended restitution fines in the
same amounts, to be imposed only if parole were revoked (§ 1202.45). Matthews
challenges the restitution fines on grounds the court failed to consider his inability to pay.
We conclude Matthews forfeited that challenge on appeal but find merit in his alternative
claim he suffered ineffective assistance when his trial counsel failed to object to the
$10,000 restitution fine in the drug case.
Section 1202.4 requires a trial court to impose a "separate and additional
restitution fine" in every case a person is convicted of a crime, unless it "finds compelling
and extraordinary reasons for not doing so and states those reasons on the record."
(§ 1202.4, subds. (b) & (c).) "A defendant's inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution fine." (§ 1202.4, subd.
(c).) Instead, a defendant's inability to pay only becomes a factor if the court decides to
impose a restitution fine above the statutory minimum. (Ibid.)
The statute defines the minimum restitution fine and gives the trial court discretion
to impose a fine of up to $10,000. (§ 1202.4, subd. (b)(1).)12 The fine must be
"commensurate with the seriousness of the offense." (Ibid.) The court may use a formula
12 The 2013 drug offense was subject to a $280 statutory minimum, whereas the 2014 assault was subject to a $300 minimum. (§ 1202.4, subd. (b)(1).)
16 to set the fine that multiplies the statutory minimum "by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted." (§ 1202.4, subd. (b)(2).)
Regardless of whether the court uses the formula, if the court imposes a restitution
fine above the statutory minimum, it "shall consider any relevant factors, including, but
not limited to, the defendant's inability to pay, 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." (§ 1202.4, subd. (d).) A
defendant bears the burden to prove inability to pay. (Ibid.) Express findings are not
required. (Ibid.)
The trial court did not provide reasons or make findings supporting its imposition
of a $10,000 restitution fine in the drug case and $1,200 restitution fine in the assault
case. The amounts follow the recommendations in the probation officer's reports and
may have been calculated using the formula in section 1202.4, subdivision (b)(2).13
13 To the extent the probation officer's report used the formula to recommend a $10,000 restitution fine in the drug case, it misapplied the formula by considering all three counts. The fine cannot be based on count 2, which was stayed pursuant to section 654. (People v. Sencion (2012) 211 Cal.App.4th 480, 483; People v. Le (2006) 136 Cal.App.4th 925, 934.) Applying the formula in section 1202.4, subdivision (b)(2) to the remaining two counts would yield a restitution fine of $9,335 ($280 x 16.67 years x 2 counts). The formula appears to have been properly applied in the assault case ($300 x 4 years x 1 felony count = $1,200).
17 The crux of Matthews's argument is that he was a 52-year-old homeless,
unemployed drug addict with mental health problems, lacking any ability to pay the fines
imposed. He challenges the restitution fines imposed based on his inability to pay. 14
However, Matthews forfeited that challenge on appeal by failing to object at the
sentencing hearing. The "application of the forfeiture bar to sentencing matters is of
recent vintage." (People v. McCollough (2013) 56 Cal.4th 589, 594.) The forfeiture bar
applies to challenges to restitution fines under section 1202.4 and precludes appellate
review here. (People v. Gamache, supra, 48 Cal.4th at p. 409; People v. Nelson (2011)
51 Cal.4th 198, 227; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [decided under
former Gov. Code, § 13967].)15
Anticipating this result, Matthews contends his counsel's failure to object violated
his Sixth Amendment right to effective assistance of counsel. To prevail, Matthews must
show his counsel's performance fell below a standard of reasonable competence, resulting
14 Matthews argues the trial court failed to consider his inability to pay, as required under section 1202.4, subdivision (d). However, because "the trial court was not obligated to make express findings concerning his ability to pay, the absence of any findings does not demonstrate it failed to consider this factor." (People v. Gamache (2010) 48 Cal.4th 347, 409; see § 1202.4, subd. (d).) We instead construe Matthews's argument as a challenge to the sufficiency of the evidence supporting the trial court's implied findings under section 1202.4, subdivision (d).
15 In McCollough, the court concluded the defendant's ability to pay a jail booking fee was a question of fact, not law, and the defendant could not transform the factual challenge into a legal one on appeal. (People v. McCollough, supra, 56 Cal.4th at p. 597.) The court explained, "[b]y 'failing to object on the basis of his [ability] to pay,' [a] defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' " (Ibid.) The same rationale applies to the felony restitution fines at issue here.
18 in prejudice. (Strickland v. Washington, supra, 466 U.S. at pp. 667-688; Ledesma, supra,
43 Cal.3d at pp. 216-217; People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).)
"When a claim of ineffective assistance is made on direct appeal, and the record does not
show the reason for counsel's challenged actions or omissions, the conviction must be
affirmed unless there could be no satisfactory explanation." (Anderson, at p. 569.) Even
where counsel's performance is deficient, the conviction must be upheld unless the
defendant demonstrates he suffered prejudice to a reasonable probability, that is, a
probability sufficient to undermine confidence in the outcome. (Ibid.; Strickland v.
Washington, at p. 694; Ledesma, at p. 217.)
Generally, "the failure to object is a matter of trial tactics that an appellate court
will seldom second-guess" (People v. Carter (2003) 30 Cal.4th 1166, 1209), but an
exception applies when "there simply could be no satisfactory explanation" (id. at p.
1211). Although " '[f]ailure to object rarely constitutes constitutionally ineffective legal
representation' " (People v. Gray (2005) 37 Cal.4th 168, 207), the record compels that
conclusion as to the restitution fine imposed in the drug case.16 "[A] defense attorney
who fails to adequately understand the available sentencing alternatives, promote their
proper application, or pursue the most advantageous disposition for his client may be
found incompetent." (People v. Scott (1994) 9 Cal.4th 331, 351.) There simply could be
16 To be sure, as the People point out, trial counsel's performance was not rendered deficient merely because the fines cumulatively exceeded $10,000. Matthews was sentenced in two separate cases, the drug case and the assault case. Separate restitution fines in separate cases that cumulatively exceed $10,000 are not unauthorized. (People v. Soria (2010) 48 Cal.4th 58, 64.) 19 no satisfactory explanation for counsel's failure to object to the $10,000 restitution fine in
the drug case. We reach a different result as to the restitution fine imposed in the assault
case, for reasons we explain below.
The facts are not disputed. At the time of sentencing, Matthews was 52 years old,
homeless, unemployed for the past 14 years, and battling longstanding mental health and
addiction issues. He served two tours of active duty in the United States Marines in the
1980's but had had been in and out of county jail and prison for drug-related offenses
since his discharge in 1988.
To be sure, the court was entitled to consider Matthews's future earnings, both
during incarceration and after his release. (§ 1202.4, subd. (d); People v. Frye (1994) 21
Cal.App.4th 1483, 1487; People v. Dickerson (2004) 122 Cal.App.4th 1374, 1380, fn. 8;
People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) However, there is no evidence
Matthews would have any ability to pay the restitution fines imposed from future
earnings. (Cf. People v. DeFrance, at p. 505.) Matthews was sentenced to a 16-year, 8-
month term, with 1113 days of conduct and custody credits. Under current guidelines,
Matthews could earn, at most, $56 per month in prison. (Dept. of Corrections and
Rehabilitation, Operations Manual, § 51120.6, p. 359.) Out of that amount, only
40 percent would be credited toward his restitution fines under current regulations.
(§ 2085.5, subd. (a); Cal. Code Regs., tit. 15, § 3097(f).) Thus, Matthews could credit at
most $22.40 per month toward his restitution fines. In the roughly 13 years Matthews
will serve after accounting for conduct and custody credits, he will be able to contribute
around $3,500 from his prison wages. Upon his release, Matthews will be over 65 years 20 old with an extensive criminal record and no employment history for decades. There is
no evidence to suggest Matthews could pay the remainder of the $10,000 restitution fine
from future earnings.
A defendant's inability to pay is only one factor the court must consider under
section 1202.4, subdivision (d). (People v. DeFrance, supra, 167 Cal.App.4th at p. 505.)
If other factors supported the $10,000 restitution fine in the drug case, Matthews might be
unable to establish that counsel's performance was constitutionally deficient. However,
the other factors all lie in Matthews's favor. The drug case was a "victimless crime," an
undercover police sting to buy $20 of cocaine. Matthews derived little economic benefit,
and the seriousness and gravity of the offense were minor. (Cf. People v. DeFrance, at
p. 505 [$10,000 restitution fine affirmed where "[d]efendant's crime was the most serious
and grave"].) Although Matthews resisted arrest, he used only bodily force. The entire
encounter lasted less than a minute, and Officer Schrom never deployed pepper spray, his
Taser, or weapons to gain control. While section 1202.4 gives the trial court discretion to
set the restitution fine, it must be "commensurate with the seriousness of the offense."
(§ 1202.4, subd. (b)(1).) None of the factors support application of a fine greater than the
statutory minimum in the drug case, and we cannot conceive of any tactical reason for
counsel's failure to object.
Counsel's failure to object was prejudicial. Given that none of the factors
supported a fine greater than the $280 statutory minimum in the drug case, it was
reasonably probable that if trial counsel had objected, the court would have imposed a
smaller restitution fine (and thus a smaller corresponding parole revocation fine) in that 21 case. (See People v. Le (2006) 136 Cal.App.4th 925, 935-936 [finding ineffective
assistance based on trial counsel's failure to object to restitution fines]; People v.
Martinez (2014) 226 Cal.App.4th 1169, 1190-1191 [same].)
We reach a different result as to the $1,200 restitution fine in the assault case.
Unlike the drug case, there was a victim, the driver of the vehicle Matthews narrowly
missed when he hurled the heavy 6-foot pole. (See § 1202.4, subd. (d) [losses may
include "intangible losses, such as psychological harm caused by the crime"].) Factors
such as the "seriousness and gravity of the offense and the circumstances of its
commission" likewise support a fine greater than the statutory minimum. Matthews
swung a 50- to 75-pound pole at passing vehicles and pedestrians and narrowly missed
hitting a driver. When San Diego Police arrived, he charged at them and tried to lift the
front of a police vehicle. The probation officer's report stated Matthews was fortunate
that no one was physically hurt and officers were able to restrain him without lethal force.
On the record before us, we cannot say trial counsel's failure to object to the restitution
fine imposed in the assault case was objectively deficient or prejudicial.
We can envision cases in which it might be appropriate to remand for the trial
court to impose restitution based on the factors in section 1202.4, subdivision (d). Here,
however, the record does not support a fine greater than the statutory minimum in the
drug case. We therefore reduce the restitution and parole revocation fines to the statutory
minimum of $280 each in the drug case. (See, e.g., People v. Walker (1991) 54 Cal.3d
1013, 1029 [judicial economy warranted modifying judgment to reduce restitution fine to
22 statutory minimum rather than remand for determination of appropriate amount].) We do
not disturb the restitution and parole revocation fines in the assault case.
DISPOSITION
In No. SCD251244, the judgment is modified as follows: (1) as to count 2, the
suspended sentence is reduced from four years to three years, and the status
enhancements pursuant to Health and Safety Code section 11370.2 are stricken; (2) the
restitution fine (Pen. Code, § 1202.4, subd. (b)(1)) and the parole revocation fine (Pen.
Code, § 1202.45) are reduced from $10,000 to $280.
As so modified, the judgment is affirmed. The clerk of the superior court is
directed to prepare an amended abstract of judgment in these respects, and forward a
certified copy of it to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 23