P. v. Brown
Filed 6/21/12 P. v. Brown CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSHUA BROWN,
Defendant
and Appellant.
E053401
(Super.Ct.No.
RIF138184)
OPINION
APPEAL
from the Superior Court
of
County. Richard Todd
Fields, Judge. Affirmed.
Dennis
L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Garrett Beaumont and Gil
Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Joshua Brown (defendant) served three years on felony probation,
including 270 days of local custody on weekends, after pleading guilty to
discharging a firearm in a grossly negligent manner, which could result in
injury and death of a person. (Pen.
Code, § 246.3.)
title="">[1] Defendant argues the trial court, at a
postprobation hearing in which it vacated his guilty plea and conviction under
section 1203.4, (1) failed to afford him its informed discretion when it denied
his motion under section 17, subdivision (b)(3), to reduce his conviction to a
misdemeanor; and (2) denied his motion to vacate probation supervision costs
imposed after the expiration of his probation.
As discussed below, we reject both of these contentions and affirm the
judgment.
In
the early evening of Sunday, August 5,
2007, residents of the apartment complex where defendant lived
heard 10 to 15 gunshots and saw a crowd of people in the courtyard and carport
areas of the building, as well as a nearby alley. When police arrived, they found two victims—a
19-year-old man who had a nonthreatening bullet wound to the leg, and a
19-year-old woman who had two bullet holes on the passenger side of her car,
one of which was where she said her son had been sitting. One witness reported having heard gunshots
coming from one of several apartments that included defendant’s.
Police found
defendant inside his apartment, lying face down on his bed. Defendant immediately admitted to having
fired several rounds from his nine-millimeter semiautomatic handgun, which was
legally registered to him.
name="_ftnref3" title="">[3] Defendant stated he was in his apartment
about 5:45 p.m. when he heard screaming
and multiple gunshots coming from the courtyard. He looked out the window and saw people
running in all directions. He stated
that he got his nine-millimeter handgun and went out on his balcony. He did not see who was shooting or what was
being shot at. Defendant stated he fired
four to five rounds into the courtyard to “get the gunmen to leave,†and then
returned to his apartment.
On
August 21, 2007, the People filed an amended complaint charging defendant with
three felonies: count 1—discharging a
firearm at an inhabited dwelling house, occupied building, or occupied motor
vehicle (§ 246); count 2—discharging a firearm in a grossly negligent
manner which could result in injury and death of a person (§ 246.3); and
count 3—offering an assault weapon for sale (§ 12280). Regarding the first two charges, the People
alleged defendant personally used a firearm.
(§§ 667, 1192.7, subd. (c)(8).
Also
on August 21, 2007,
defendant pled guilty to count 2 in exchange for the other charges being
dropped.
On
October 2, 2007, defendant
was placed on probation for 3 years and ordered to serve 270 days of local
custody on weekends. Defendant completed
probation on October 1, 2010. On October
19, 2010, the following entry was posted in the case docket: “Pay to Court: Probation Reimbursement/Costs in Amount of
$634.83 Imposed on 10/02/2007.â€
On
March 17, 2011, defendant
filed a motion to set aside his guilty plea and dismiss the complaint, to
reduce the offense to a misdemeanor, and to vacate probation costs imposed
after the expiration of his probation.
On
April 4, 2011, the trial
court set aside the guilty plea and dismissed the complaint. However, the court declined to reduce the
offense to a misdemeanor and vacate the unpaid costs of probation. This appeal followed.
1.
Abuse of Discretion
Defendant
argues “the trial court usurped the authority of the Legislature in essentially
declaring appellant’s conduct a felony as a matter of law because people were
present when he fired the shots.†He
also asserts the trial court failed to exercise its informed discretion because
it improperly relied upon its own opinion that someone firing shots into an
area near where people were located was automatically committing a felony
rather than a misdemeanor. Our review of
the trial court’s explanation for its decision reveals a very reasoned use of
informed discretion, and so we reject defendant’s contention.
Section 17,
subdivision (b), gives a trial court discretion to reduce an offense charged as
a felony to a misdemeanor if the offense is a “wobbler,†i.e., chargeable
either as a felony or as a misdemeanor, upon imposition of a punishment other
than state prison (§ 17, subd. (b)(1)) or by declaration as a misdemeanor
after a grant of probation (§ 17, subd. ( b)(3)). (People
v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 974 (Alvarez).) Discharging a firearm in a grossly negligent
manner, which could result in injury and death of a person, is a wobbler. (§ 246.3.) A trial court’s decision under section 17,
subdivision (b), is reviewed for abuse of discretion. (Alvarez,
at pp. 976-977.)
A
court must exercise its discretion by applying the
before it. It abuses its discretion when
it “ ‘transgresses the confines of the applicable principles of law
. . . .’ †(
State University (2005) 132 Cal.App.4th 359, 393, quoting
Cal.App.3d 1287, 1297.) “In other words,
judicial discretion must be measured against the general rules of law and, in
the case of a statutory grant of discretion, against the specific law that
grants the discretion.†(
Our Supreme Court has held that a trial court must base its decision
under section 17, subdivision (b), on “individualized consideration of the
offense, the offender, and the public interest.†(Alvarez,
Here, the trial
court denied defendant’s motion to reduce his offense to a misdemeanor based on
three broad categories: (1) the
nature of the offense; (2) the defendant’s prior criminal record; and
(3) the sentencing factors set forth in California Rules of Court, rule
4.410. Defendant challenges only the
trial court’s reasoning as to the nature of the offense, so it is to those
comments that we turn our attention.
Again, defendant argues the trial court improperly failed to use its
informed discretion by positing a blanket rule that any section 246.3 offense
involving the presence of people is automatically a felony. What the court actually said is: “So we start with the nature of the crime. It does not appear to the Court that the
crime is a misdemeanor level crime.
Actually, a shooting at a place where there are physically persons
present is not a misdemeanor level crime.
A misdemeanor level crime—sometimes you’ll see an offense where a person
is out, kind of in the middle of nowhere, and they get charged with 246.3. We see these cases actually more often than
not where a person is on a large property, kind of in the middle of nowhere,
but they are still next to that property and another property, and bullets go
flying and somebody can potentially get hit. This is far more serious than
that.
“This is literally
why we have police, so people won’t do self-help. They won’t grab guns, run down the
stairs—instead of staying in their place and calling 9-1-1—run down the stairs
and literally fire in an area where there are people present. That is simply not misdemeanor conduct;
that’s felony conduct, and appropriately remains, and should remain as
such.
“There is a
variety of conduct that we see that’s a whole continuum as to whether it’s
appropriate to be a misdemeanor or a felony.
But the Court’s experience, that does not appear to the Court to be a
misdemeanor conduct, in fact, very, very serious conduct.â€
Here,
the trial court quite accurately placed defendant’s actions along “a whole
continuum†for this offense, from target shooting in the middle of nowhere
where “somebody can potentially get hit,†to the situation in this case, in
which defendant fired several shots into the courtyard of an apartment building
where numerous people were present and trying to get out of the way of gunshots
that were already being fired by an unknown number of people. In fact, one man was actually shot in the
leg, and a woman had bullets fired into her car, near where her child was
sitting. The trial court did not base
its decision simply on the mere presence of one or more persons, but on the
entire situation, including the amount of risk and the number of persons placed
at that level of risk. Despite
defendant’s attempt to establish an abuse of discretion by quoting selectively
from the trial court’s statement of decision, we conclude that, based on the
court’s statement at a whole, it used its informed discretion when it denied
defendant’s motion to reduce his conviction to a misdemeanor.
2.
Defendant argues
we should order the trial court to hold a hearing under section 1203.1b to
determine his ability to pay the probation reimbursement costs because the
probation department did not impose the full amount of the authorized costs
until after defendant completed his probation.
When defendant was
granted probation on October 2, 2007, the trial court adopted the
recommendations in the probation report and ordered him to pay the costs of the
presentence probation report not to exceed $318, and of probation supervision
in the amount of $252. The court
authorized the costs of probation supervision to be increased up to $1,908
should the level of probation supervision be modified. The court fully authorized the probation
department to determine the actual cost of probation. Defendant accepted these terms of
probation. Defendant’s probation expired
on October 1, 2010. According to
defendant’s March 17, 2011 motion, on October 19, 2010, the following entry was
posted in the case docket: “Pay to
Court: Probation Reimbursement/Costs in
Amount of $634.83 Imposed on 10/02/2007.â€
Defendant subsequently received a letter from the superior court, dated
January 28, 2011, telling him to pay the remainder of the probation costs or
face a $300 civil assessment.
On February 4,
2011, defendant asked the court to add onto its February 8 calendar his request
to “vacate civil assessment.†On
February 8, 2011, the court granted defendant’s request to continue the motion
to March 3, 2011. On February 22, 2011,
$110.60 of the costs were suspended. On
February 28, 2011, the enhanced collection division filed a report with the
trial court setting defendant’s total probation costs at $1,094.23, leaving an
unpaid amount of $524.23 after counting $570 in payments from defendant. On March 3, 2011, this motion was again taken
off calendar at the defense’s request.
On March 17, 2011, defendant filed his motion described above, which
included a request “to vacate costs imposed after the expiration of probation,â€
on the ground that “the entry of judgment for additional reimbursement costs of
probation, after probation had expired, was in excess of the court’s
jurisdiction.†As also described above,
the trial court heard and denied this portion of defendant’s motion on April 4,
2011.
To the extent this
issue is even appealable, the trial court properly ruled that defendant is not
entitled to a section 1203.1b hearing to determine his ability to pay the
probation costs. This is because the
costs were actually imposed on October 2, 2007, defendant was given notice at
that time the costs could be as high as $1,908 should the probation department
so determine, and defendant fully agreed to this at sentencing. Defendant does not cite any legal authority
confirming that he was entitled to an ability-to-pay hearing in 2011 for an
amount that the superior court fully authorized in 2007. It appears defendant’s true gripe is that the
probation department did not assess him the full amount of the probation fees
until a few weeks after he had completed the terms of his probation. However, he has presented no
subject for appeal, nor that the probation department and/or superior court
acted improperly by waiting until a few weeks after he completed probation to
impose the full amount of the probation costs that were authorized on October
2, 2007.
Disposition
The judgment of
the trial court is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
KING
J.
MILLER
J.
unless otherwise indicated.
from the probation report.
