name=DraftDelete> 

P. v. Dalton

 

 

Filed 1/30/14  P. v. Dalton CA5

 

 

> 

>NOT TO BE PUBLISHED IN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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   ALVIN HENRY DALTON,   Defendant and Appellant.

F063443   (Super. Ct. No. F11901198)     >OPINION

 

APPEAL from a
judgment of the Superior Court of Fresno
County.  Gary R. Orozco, Judge.

S. Lynne Klein,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General,
for Plaintiff and Respondent.

-ooOoo-

>INTRODUCTION

In March 2011,
defendant Alvin Dalton shot his next door neighbor, Danetta H., and her two
teenage children, Dazhane H. and Dezmon H., after intervening in a physical altercation
involving defendantʼs girlfriend, Lora White.  As a result of the shooting, Danetta died
from a gunshot wound to the head, Dazhane suffered serious injuries requiring
surgery, and Dezmon suffered superficial injuries.

After defendantʼs
first trial ended in a mistrial, a second jury convicted him of one count of
second degree murder (Pen. Code,href="#_ftn1" name="_ftnref1" title="">^[1] § 187; count 1) and two
counts of unpremeditated attempted murder (§§ 187, 664; counts 2 & 3).  The jury found true the allegations that
defendant personally used a handgun in the commission of each count
(§ 12022.5, subd. (a)) and that he intentionally discharged a firearm in
the commission of each count, causing death or great href="http://www.sandiegohealthdirectory.com/">bodily injury in counts 1
and 2 (§ 12022.53, subds. (c); count 3, (d); counts 1 & 2).  The jury also found true the allegation that
defendant inflicted great bodily injury in the commission of count 2
(§ 12022.7, subd. (a).)  Defendant
was sentenced to an aggregate term of 83 years to life. 

On appeal,
defendant contends:  (1) the prosecutor
committed prejudicial misconduct in closing argument by misstating the law
regarding heat of passion; (2) the trial court erred by failing to instruct the
jury that the enhancement allegations required proof of the union of act and
intent; (3) the trial court erred in imposing a $296 probation report fee
without first making a determination of defendantʼs ability to pay; and
(4) the trial court erred in imposing a $10,000 restitution fine.  Defendant also raises ineffective assistance
of counsel claims in connection with each of his contentions.  We affirm.

>FACTS

On March 2,
2011, around 11:30 a.m., Danetta and Dazhane were walking home from a nearby
store when Lora started spraying them with mace and another strong-smelling
substance.  Dazhane reacted by throwing
Gatorade bottles and a water bottle towards Lora, and Danetta sprayed Lora with
a mixture of water and insect spray.

Lora went inside
her apartment and shortly remerged carrying a pot of steaming hot water.  Lora ran towards Danetta and poured the water
on her.  Lora then hit Danetta multiple
times with the pot.  Dazhane ran over and
grabbed Lora by the hair and hit Lora multiple times in the head. 

Defendant, who
had been outside fixing the lock on his door, went to grab Dazhane and pull her
off Lora.  As he pulled Dazhane away from
Danetta and Lora, defendant said, “Let it be a one-on-one fight.”  Dazhane continued to hit and kick defendant
as he moved her away from Danetta and Lora who were now both on the
ground. 

Dazhane was able
to get away from defendant and called out for her brother, Dezmon.  A few seconds later, Dezmon ran out of their
apartment and tried to pull Lora off Danetta. 
In the meantime, defendant punched Dazhane in the face and she fell to
the ground.  After defendant punched
Dazhane, Dezmon asked, “You just going to hit my sister?”  Defendant replied, “yes.” 

Dezmon pushed
defendant and punched him in the face. 
Defendant said, “Oh, youʼre going to hit me, youʼre going to
hit me?”  Then defendant said, “Fuck this
shit” and pulled out a gun.  After firing
one shot into the air, defendant pointed the gun at Danetta and shot her two to
three times.  After Danetta fell to the
ground, defendant pointed the gun at Dazhane and shot her twice.  Defendant then pointed the gun at Dezmon and
fired two shots.

Dezmon started
walking towards defendant and said, “You shot my mom” and “You killed my mom.”  Defendant said “yes” to each statement.  Dezmon became angry, grabbed defendantʼs
arm, and started wrestling with defendant standing up.  As they were wrestling, defendant touched
Dezmonʼs chest with the gun and Dezmon heard a click.  Lora came up next to them and asked defendant
to give her the gun.  Defendant handed
Lora the gun and let go of Dezmon. 
Defendant then went into his apartment.

 

The defense

Defendant
described living next door to Danetta as “constant terrorism.”  Defendant explained that Danetta had
threatened him and his personal property many times, and had vandalized his
patio, car, and truck.

On the night
before the shooting, defendant came home to find his security screen door
covered with a “sludge material” including pasta.  Lora had to let him in because he could not
get his key in the lock.  Defendant got
three pots of hot water and took them outside to clean the door.

Around 11:00
p.m., Danetta came out and said, “um-hum, youʼre going to be cleaning all
night” and “[m]e and my homeboys, weʼre going to jack you—you and your car
tonight,” referring to the Strothers Boys gang. 
Dazhane was standing next to Danetta when she made this threat.  Defendant took it to be a credible threat
because Danetta had carried out all her past threats.

After Danetta
threatened him, defendant immediately went inside his home and armed
himself.  He then went back outside and
threw hot water on the security screen door. 
It took him about 30 minutes to clean the door.  Defendant also called the police that
night.  He estimated that there had been
50 such incidents in the past six months where the police had been called.

The next
morning, defendant went outside to clean the lock on the security screen
door.  Dazhane tried to follow Lora
inside their apartment, but defendant stopped her.  He then turned his attention back to cleaning
the lock.  Next defendant heard Danetta
and Dazhane cussing and yelling at Lora. 
He turned around and saw Danetta and Lora “tangled” on the ground, and
saw Dazhane kicking and punching Lora in the head.  Defendant dropped what he was doing and ran
over and pulled Dazhane off of Lora. 
Dazhane punched defendant in the face, kicked him in the legs and groin
area, and tried to bite him in the chest.

Defendant then
saw Dezmon run over to Lora and start pulling her hair and hitting her.  Defendant ran over to protect Lora.href="#_ftn2" name="_ftnref2" title="">^[2]  Defendant saw Dezmon reach
into his left pocket.  As defendant was
looking down, Dezmon punched him. 
Defendant then reached for his gun. 
Defendant explained he reached for his gun because he was in fear for
his life based on the threat Danetta had made to him the previous night.  Defendant reiterated that “every time she
would make a threat, she would follow through with it.” 

According to
defendant, before he reached for his gun, all three family members—Danetta,
Dazhane, and Dezmon—were hitting and kicking him.  Defendant estimated he was hit five to six
times and kicked three or four times. 
When defendant pulled out his gun, Danetta and Dazhane were standing
facing him and Dezmon was behind him. 
Defendant fired his gun because he was in fear for his life and was
trying to escape to his apartment.  >

DISCUSSION

I.          Prosecutorial
Misconduct

Defendant claims
the prosecutor prejudicially misstated the law regarding heat of passion during
closing argument.  Alternatively,
defendant argues that, to the extent his claim was forfeited, his trial counsel
provided ineffective assistance.

We conclude
defendant forfeited his claim of prosecutorial misconduct.  “When a defendant believes the prosecutor has
made remarks constituting misconduct during argument, he or she is obliged to
call them to the court’s attention by a timely objection.  Otherwise no claim is preserved for
appeal.  [Citation.]  [¶] 
Defendant made no objection to the prosecutor’s remarks and thus [forfeited]
his claim.”  (People v. Morales (2001) 25 Cal.4th 34, 43-44.)

Defendant cites
the following statement by the prosecutor as objectionable:  “So I guess, again, ask yourself:  The fact that Dezmon took a swing at him, is
that sufficient provocation that a reasonable person would be provoked to
pulling out a gun and firing at Danetta, and then at Dazhane, and then
Dezmon?  Again, the evidence proves that
it was not sufficient provocation.”

Defendant
contends the same type of argument was deemed improper in People v. Najera (2006) 138 Cal.App.4th 212.  Najera explained
that with the defense of heat of passion, “[t]he focus is on the
provocation—the surrounding circumstances—and whether it was sufficient to
cause a reasonable person to act rashly. 
How the killer responded to the provocation and the reasonableness of
the response is not relevant to sudden quarrel or heat of passion.”  (Id. at
p. 223.)

Defendant is
correct that the prosecutor’s hypothetical question regarding whether “a
reasonable person would be provoked to pulling out a gun and firing” suggests
an incorrect test for determining whether defendant acted in the heat of
passion.  It asks how a reasonable person
would have acted in defendant’s position. 
“[P]rovocation is not evaluated by whether the average person would >act in a certain way:  to kill. 
Instead, the question is whether the average person would >react in a certain way:  with his reason and judgment obscured.”  (People
v. Beltran (2013) 56 Cal.4th 935, 949, original italics.)  Here, the prosecutor’s statements effectively
“suggest[ed] that the jury should consider the ordinary person’s conduct and
whether such a person would kill.… 
[T]his was not the correct standard.” 
(Id. at p. 954, fn.
omitted.)

The question
becomes whether defendantʼs trial counsel rendered ineffective assistance
of counsel by failing to object to the prosecutorʼs statement.  The burden is on defendant to establish
ineffective assistance by a preponderance of the evidence.  (People
v. Ledesma (1987) 43 Cal.3d 171, 218.) 
To do so, a defendant “must show both that trial counsel failed to act
in a manner to be expected of reasonably competent attorneys acting as diligent
advocates, and that it is reasonably probable a more favorable determination
would have resulted in the absence of counselʼs failings.”  (People
v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington
(1984) 466 U.S. 668, 687-696.)

On direct
appeal, as here, this burden can be stringent.  When the record on appeal “‘“sheds no light on
why counsel acted or failed to act in the manner challenged[,] ... unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.ʼ  [Citations.] 
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.” 
(People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267, italics added; People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance
claim properly resolved on direct appeal only where record affirmatively
discloses no rational tactical purpose for counselʼs actions].)

Our Supreme
Court has cautioned that, if not for this standard, “appellate courts would
become engaged ‘in the perilous process of second-guessing.ʼ  [Citation.] 
Reversals would be ordered unnecessarily in cases where there were, in
fact, good reasons for the aspect of counselʼs representation under
attack.  Indeed, such reasons might lead
a new defense counsel on retrial to do
exactly what the original counsel did, making manifest the waste of judicial
resources caused by reversal on an incomplete record.”  (People
v. Pope (1979) 23 Cal.3d 412, 426, disapproved on another ground in >People v. Berryman (1993) 6 Cal.4th
1048, 1031, fn. 10.)

Defendant cannot
meet his burden to establish ineffective assistance because the record is
silent as to why his trial counsel did not object to the complained-of remarks
by the prosecutor.  The failure to object
to evidence or argument “‘rarely constitutes constitutionally ineffective legal
representation ....ʼ  [Citation.]”  (People
v. Huggins (2006) 38 Cal.4th 175, 252; see also People v. Ghent (1987) 43 Cal.3d 739, 772-773 [rejecting contention
counselʼs failure to object during prosecutorʼs closing argument
amounted to ineffective assistance because counsel “may well have tactically
assumed that an objection or request for admonition would simply draw closer
attention to the prosecutorʼs isolated comments”]; People v. Beagle (1972) 6 Cal.3d 441, 458, superseded by statute on
other grounds as stated in People v.
Rogers (1985) 173 Cal.App.3d 205, 208-209 [failure to make certain
objections to evidence ordinarily within realm of trial tactics over which
court will not engage in “judicial hindsight”]; People v. Zimmerman (1980) 102 Cal.App.3d 647, 658 [failure to
object to evidence ordinarily “held insufficient to establish an
unconstitutional impairment of the right to effective counsel”].)

>II.        Instructions on
Union of Act and Intent and Firearm Discharge Enhancements

Next, defendant
contends the trial court erred by failing to instruct the jury on the
requirement of finding a union of act and intent as it related to the section
12022.53 enhancements.href="#_ftn3"
name="_ftnref3" title="">^[3]  Defendant argues he did not
forfeit this claim because the error affects his substantial rights.  Alternatively, he argues his trial counsel
rendered ineffective assistance by failing to object or request modification to
the allegedly incomplete instructions.

In determining
whether error has been committed in giving or not giving jury instructions, an
appellate court must consider the instructions as a whole and assume jurors are
intelligent persons, capable of understanding and correlating all instructions
that are given.  (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)  “Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.” 
(People v. Laskiewicz (1986)
176 Cal.App.3d 1254, 1258.)

Here, the trial
court informed the jury:  “The> crimes charged in this case require
proof of the union, or joint operation, of act and wrongful intent.”  (CALCRIM No. 251, italics added.)  The section 12022.53 enhancement instructions
clearly referred to the enhancements as being part of the allegations in the
substantive counts.  For example, the
jury was told:  “If you find the
defendant guilty of the crimes charged in
counts 1 and 2, you must then decide whether, for each crime, the People have
proved the additional allegations
that the defendant personally and intentionally discharged a firearm during
those crimes and, if so, whether the defendantʼs act caused great bodily
injury or death.”href="#_ftn4"
name="_ftnref4" title="">^[4]  (CALCRIM No. 3150, italics
added.)  Thus, the jury would have
understood the union of act and intent requirement applicable to the “crimes
charged” (CALCRIM No. 251) applied equally to the enhancements alleged in each
count.  Although it would be helpful to
include language that explicitly referred to accompanying enhancements, we see
no error in the instructions given here. 


Because the trial
courtʼs instructions were not erroneous, we reject defendantʼs
related ineffective assistance claim based on his trial counselʼs failure
to object or request modification.  It is well settled that trial
counsel is not required to make tactical decisions, undertake futile acts, or
file meritless motions simply to withstand later claims of ineffective assistance.
 (People
v. Anderson (2001) 25 Cal.4th 543, 587; People
v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.)  

III.       Probation
Report Fee

Defendant
contends there was insufficient evidence he could afford to pay the $296
probation report fee imposed by the trial court.  Alternatively, defendant argues that, to the
extent the issue is forfeited, his trial counsel provided ineffective
assistance.

The probation
report fee was based on section 1203.1b, which authorizes the recoupment
of certain costs incurred for the preparation of presentence investigations and
reports on the defendant’s amenability to probation.  (See People v.
Valtakis (2003) 105
Cal.App.4th 1066, 1070 (Valtakis).)  Section 1203.1b, subdivision (b)
provides in pertinent part:  â€œname="SR;690">The [trial] court name="SR;693">shall order the name="SR;696">defendant to pay name="SR;699">the reasonable costs
if it determines
that the defendant
has the ability name="SR;711">to pay those name="SR;714">costs based on name="SR;717">the report of name="SR;720">the probation officer,
or his or name="SR;726">her authorized representative.”

We conclude
defendant forfeited the issue by not objecting at sentencing.  (Valtakis, supra, 105
Cal.App.4th at pp. 1071-1072 [§ 1203.1b probation fee].)  In People v. McCullough (2013) 56 Cal.4th 589 (>McCullough), our Supreme Court recently
held that the defendant’s failure to object to the imposition of a jail booking
fee (Gov. Code, § 29550.2) forfeited the claim that he lacked the ability
to pay the fee.  The court concluded that
the defendant’s financial ability to pay the fee was a question of fact, not
law.  (McCullough, >supra, at p. 597.)  â€œDefendant may not ‘transform … a factual
claim into a legal one by asserting the record’s deficiency as a legal error.’  [Citation.]  By ‘failing to object on the basis of his
[ability] to pay,’ defendant forfeits both his claim of factual error and the
dependent claim challenging ‘the adequacy of the record on that point.’  [Citations.] 
… [B]ecause a court’s imposition of a booking fee is confined to factual
determinations, a defendant who fails to challenge the sufficiency of the
evidence at the proceeding when the fee is imposed may not raise the challenge
on appeal.”  (Ibid.)

name="citeas((Cite_as:_2013_WL_4048239,_*2_(Ca">The same
rationale applies to presentence probation report fee.  Before sentencing, defendant was in possession
of the probation officer’s report, which recommended that the court impose a
$296 probation report fee pursuant to section 1203.1b.  When the court sentenced defendant and
imposed the fee, defendant did not object to the fee and thus challenges to the
fee are forfeited on appeal.

Moreover,
defendant cannot meet his burden on his ineffective assistance of counsel claim
because the record is silent as to why his trial counsel did not object to the
probation report fee.  (See >Mendoza Tello, supra, 15 Cal.4th at p. 266.) 
Counsel may have known facts outside the record that would have
supported an ability-to-pay finding. 

IV.       Restitution
Fine

Finally,
defendant challenges the trial courtʼs imposition of a $10,000 restitution
fine based on a failure to consider defendantʼs ability to pay.  Defendant relies on Southern Union Co. v. United States (2012) 567 U.S. ___ [132 S.Ct.
2344] (Southern Union), to argue that
the determination of facts affecting the restitution fine amount should have
been decided by a jury.  Alternatively,
defendant again argues that, to the extent his claims are forfeited, his trial
counsel provided ineffective assistance.

At the time of
defendantʼs sentencing, section 1202.4, subdivision (b) required the trial
court to impose a restitution fine between $240 and $10,000href="#_ftn5" name="_ftnref5" title="">^[5] in every felony case unless “compelling
and extraordinary reasons” exist for not doing so.  (§ 1202.4, subd. (b).)  While a defendantʼs inability to pay can
be considered when increasing a fine beyond the statutory minimum, it “shall
not be considered a compelling and extraordinary reason not to impose a
restitution fine.”  (§ 1202.4, subd.
(c).)  When determining the amount of the
fine, the court must consider “any relevant factors, including, but not limited
to, the defendantʼs 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 [tangible and intangible] as a result of the crime, and the
number of victims involved in the crime.” 
(§ 1202.4, subd. (d).)  The
court need not conduct a separate hearing to determine the fine, nor make
express findings regarding the factors considered in determining the fine.  (Ibid.)  Indeed, the court may determine the amount of
the fine by formula.  (§ 1202.4,
subd. (b)(2).)href="#_ftn6"
name="_ftnref6" title="">^[6]

Although
defendant forfeited most claims on this point by failing to object during
sentencing (see People v. Nelson
(2011) 51 Cal.4th 198, 227 (Nelson)),
we will consider defendantʼs claim based on Southern Union because that case was decided after his sentencing
hearing.  (Southern Union, supra,
567 U.S. ___ [132 S.Ct. 2344].)

In >Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi), the United States
Supreme Court held that a jury must decide beyond a reasonable doubt any fact
that increases a criminal penalty beyond a statutory maximum.  (Id.
at p. 490.)  In Southern Union, the Court extended the Apprendi rule to monetary fines. 
(Southern Union, >supra, 567 U.S. at pp. _____, [132 S.Ct.
at pp. 2352, 2357].)  Defendant argues
the jury should have decided the amount of the restitution fine because it
increased his sentence.  Defendantʼs
argument was recently addressed and rejected in People v. Kramis (2012) 209 Cal.App.4th 346, 351-352 (>Kramis). 
Kramis explained that >Apprendi and Southern Union do not apply unless a court imposes a penalty that >exceeds a statutory range.  (Kramis,
at p. 351.)  Because the trial judge
imposed a $10,000 fine in Kramis, the
court held the fine was within the statutory range, did not implicate >Apprendi or Southern Union, and therefore did not need to be decided by a
jury.  (Kramis, at pp. 351-352.) 
Like the fine in Kramis, the
trial court here exercised discretion within the statutory range and imposed a
$10,000 restitution fine.  Although the
fine constitutes the statutory maximum, it does not exceed the maximum and >Southern Union therefore does not apply.

We need not
determine whether trial counselʼs failure to object to the restitution
fine was defective because even assuming counselʼs performance was
deficient, defendant cannot demonstrate prejudice.  Had trial counsel preserved an objection to
the amount of the restitution fine, the amount of the fine would be subject to
an abuse of discretion standard on appeal. 
(Nelson, supra, 51 Cal.4th at p. 227.) 
In reviewing the amount of the restitution fine, numerous factors in
section 1202.4, subdivision (d) support the trial courtʼs decision.  The crimes in this case—second degree murder
and attempted murder—were extremely serious. 
Defendant committed the crimes by intentionally firing a handgun at
three unarmed victims.  The surviving
victims are minors who lost their mother as a result of defendantʼs
violent actions.  In light of all the
circumstances in this case, it was not an abuse of discretion for the trial
court to impose a $10,000 restitution fine. 
Thus, defendant has not met his burden to show ineffective assistance of
counsel.

DISPOSITION

            The
judgment is affirmed.

 

 

                                                                                                            _____________________

HILL,
P. J.

WE CONCUR:

 

 

_____________________

GOMES, J.

 

 

_____________________

POOCHIGIAN, J.

 

---

id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">^[1]           Further
statutory references are to the Penal Code unless otherwise indicated.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">^[2]           Defendant
claimed he had never seen Dezmon before and did not recognize him at the time
of the incident.  Dezmon, however, testified
he and his family had lived next door to defendant and Lora for three years
and, although he never spoke to defendant, he often saw defendant coming and
going from his apartment.