P. v. Arroyo
Filed 3/29/13 P. v. Arroyo CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK
BRANDON ARROYO,
Defendant and Appellant.
A135799
(Humboldt
County
Super. Ct.
No. CR1103904)
Defendant
Mark Brandon Arroyo pleaded guilty to two counts in connection with a
high-speed police chase on a rural road through Humboldt and Mendocino
Counties. He argues on appeal that a fine imposed on
one of the counts should have been stayed under Penal Code section 654
because it amounted to multiple punishment for an indivisible course of
conduct. We remand to the trial court
for further proceedings on this issue because the appellate record is
unclear. We do not reach the merits of
Arroyo’s second argument, that the trial court impermissibly imposed a probation
condition requiring him to obtain permission before leaving
County, because the issue was forfeited.
I.
Factual and Procedural
Background
Around 10 p.m.
on September 13, 2011,
a California Highway Patrol officer saw Arroyo cross a double yellow line as he
drove a pickup truck westbound on Briceland Road
in Humboldt County. The officer initiated a traffic stop for a
violation of Vehicle Code section 21460, subdivision (a), which
prohibits crossing double parallel solid lines.
The officer pulled behind Arroyo’s vehicle and turned on his patrol
car’s flashing red lights. Arroyo first
pulled over but, instead of stopping, drove back onto the road and kept going,
even after the officer turned on his siren, activated more flashing lights, and
directed Arroyo on a public address speaker to pull over.
Arroyo
led the officer, as well as an officer who was present in another car at the
original traffic stop, and a third officer who later joined the pursuit, on a 23-minute
chase, traveling 22 miles on a winding, rural mountain road. Arroyo traveled at different speeds during
the chase, but was clocked at one point driving 60 miles per hour through a
town with a speed limit of 30 miles per hour.
The pursuit ultimately ended on an unpaved road in Mendocino
County. A preliminary alcohol screening device
measured Arroyo’s blood alcohol level at 0.113 percent.
Arroyo
was charged by information with a felony count of evading a peace officer with
willful disregard for the safety of persons or property (Veh. Code,
§ 2800.2, subd. (a)—count 1) and a misdemeanor count of driving
under the influence of alcohol (Veh. Code, § 23152,
subd. (a)—count 2). The information
included another count and a special allegation that were both dismissed under
a negotiated disposition in which Arroyo pleaded guilty to count one
(evading a peace officer) as well as one count of alcohol-related reckless
driving (Veh. Code, §§ 23103, 23103.5), a lesser included offense of count two.
The
probation department recommended that Arroyo be granted three years’ probation,
subject to 24 conditions, two of which are challenged on appeal. The first of these challenged conditions
recommended that Arroyo be ordered to pay a “[c]ourt fine†of $600 under section 672,
which authorizes the trial court to impose a fine on an offender convicted for
any crime punishable by imprisonment, where no fine is otherwise prescribed by
law. The second challenged condition
recommended that Arroyo be ordered not to leave Humboldt County, the county in
which he resided, without his probation officer’s permission.
At
the sentencing hearing, the judge
stated that he had read and considered the probation officer’s report, and
intended to adopt the probation department’s recommendation to place Arroyo on
probation for three years and to impose the proposed terms and conditions
department’s proposed conditions, but not the two at issue in this appeal. The trial court rejected counsel’s arguments,
placed Arroyo on three years’ probation, and adopted all of the probation
department’s proposed conditions as to count one. Before imposing the conditions, the following
exchange took place:
“[THE
COURT]: Mr. Arroyo,
have you read the proposed terms of probation?
“THE
DEFENDANT: Yes, I have.
“THE
COURT: Do you
understand them?
“THE
DEFENDANT: Yes, I do.
“THE
COURT: Do you have
any questions about any of them?
“THE
DEFENDANT: No, I don’t.
“THE
COURT: Do you accept
those as the terms and conditions of your probation?
“THE
DEFENDANT: Yes, I do.â€
The
trial court’s one-page form minute order states, under a list titled
“FINES/FEES,†that a “[c]ourt fine†of $600 was imposed as to count one. Presumably, this was a reference to the $600
proposed court fine listed in the probation report, as the fine was not
specifically mentioned at the sentencing hearing.
As
to count two, the court stated, without elaboration, at the beginning of the
sentencing hearing that it intended to impose “a standard wet reckless
sentence.†After the parties’ arguments
regarding probation conditions and the trial court’s imposition of probation on
count one, the trial court placed Arroyo on three years’ conditional, revocable
release on count two. The court then
stated: “Terms are you are to pay a fine
in the amount of $1,434. There will be a
$120 reduction if you complete the MADD Victims panel.†It is unclear how the court arrived at the
figure of $1,434, as this amount does not appear in the probation report and
was not mentioned at the sentencing hearing before the fine was imposed.
The
trial court’s minute order on count two appears on a two-page form that is
different from the one-page form used for count one. A box is checked next to the following
statement: “Court fine of $[1,43400
handwritten]; Suspend $[left blank].
Fine includes Security Surcharge, Criminal Conv. Assessment, and all
penalties, assessments and fees required except as stated below.†The minute order repeats the trial court’s
comments at the hearing that compliance with the “MADD Program†would result in
a $120 reduction in the fine. Arroyo
timely appealed.
II.
Discussion
The
Trial Court Did Not Clearly Violate Section 654.
Arroyo
first argues that the $1,434 fine imposed on count two must be stayed under
section 654. Section 654,
subdivision (a) provides that “[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest
potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.â€
The statute “precludes multiple punishments not only for a single act,
but also for an indivisible course of conduct.
[Citation.] ‘The purpose of this
statute is to prevent multiple punishment for a single act or omission, even
though that act or omission violates more than one statute and thus constitutes
more than one crime.’ [Citation.]†(People
v. Tarris (2009) 180 Cal.App.4th 612, 626.)
Fines that are punitive in nature are subject to section 654. (People
v. Sharret (2011) 191 Cal.App.4th 859, 865, 869 [criminal laboratory
analysis fee punitive in nature and thus subject to § 654];
subd. (e) fine punitive in nature and thus subject to § 654, even if
imposed as condition of probation].)
Section 654’s
ban on multiple punishments does not apply, however, when the criminal acts
committed during the single course of conduct serve separate criminal
objectives. (People v. Davey (2005) 133 Cal.App.4th 384, 390.) “ ‘The question whether [Penal Code]
section 654 is factually applicable to a given series of offenses is for
the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this
question must be upheld on appeal if there is any substantial evidence to
support them.’ [Citation.] The court’s findings may be either express or
implied from the court’s ruling.
[Citation.] In the absence of any
reference to Penal Code section 654 during sentencing, the fact that the
court did not stay the sentence on any count is generally deemed to reflect an
implicit determination that each crime had a separate objective. [Citations.]â€
(People v. Tarris,
pp. 626-627.)
If
we knew that the trial court here imposed punitive fines on the same grounds
for both counts one and two, we would conclude that the fines were subject to
section 654, because Arroyo’s acts were committed during a single course
of conduct. (People v. Tarris, supra,
180 Cal.App.4th at p. 628.) The
preliminary hearing transcript reveals that Arroyo’s convictions for evading a
peace officer and alcohol-related reckless driving both arose out of his single
course of conduct in leading police on a chase while intoxicated, and the
crimes he committed did not serve separate criminal objectives. (People v.
Davey, supra, 133 Cal.App.4th at
p. 390.) We disagree with respondent’s
argument that Arroyo’s reckless driving conviction arose out of the “distinct
act†of crossing the double yellow line.
When the officer first saw Arroyo, he did not observe Arroyo speeding or
doing anything wrong, other than crossing the yellow line. Arroyo pleaded guilty to a violation of
Vehicle Code section 23103, which makes it unlawful to drive on a highway
in “willful or wanton disregard for the safety of persons or property.†(Veh. Code, § 23103,
subd. (a).) In holding Arroyo to
answer on the charges against him, the trial court specifically found that
Arroyo’s actions in leading officers on a nearly 22-mile chase posed “wanton
disregard for the safety of others, both person, property and the like,†with
no suggestion that crossing a double line posed such serious safety
concerns. It is clear that Arroyo’s
convictions arose out of a single course of conduct.
But
the record is ambiguous on whether the fines imposed for counts one and two
were punitive and imposed on the same grounds. The $600 “court fine†on count one was
apparently imposed under section 672, as recommended by the probation
department. But on count two, no
statutory basis for the “court fine†imposed was specified, either at the
sentencing hearing or on the form minute order.
Arroyo simply asserts that the fine constituted punishment, without
further analysis. Although fines arising
from convictions generally are considered punitive in nature (
757), we note that the fine imposed on count two included a “
a nonpunitive purpose, and therefore such a fee is not subject to
section 654. (Alford at pp. 757-758.)
Even
if the fine on count two was punitive, there are other differences between
the two fines that call into question whether they were imposed on the same
grounds. The fine imposed on count two
included “Criminal Conv. Assessment, and all penalties, assessments and fees
required by law,†while the fine imposed on count one did not. The fine imposed on count two would be
reduced if Arroyo completed a Mothers Against Drunk Driving program, while the
fine imposed on count one would not.
Moreover, while Arroyo is technically correct that section 654 was
not specifically mentioned at the sentencing hearing, the trial court was
clearly aware of the prohibition against multiple punishment for a single
act. When addressing count two, the
court stated, “I am not imposing a restitution fine because
there’s one per case.†(Italics
added.)
Under
these particular circumstances, we find it appropriate to remand the matter to
the trial court to clarify the grounds upon which it imposed the two court
fines, and to stay one of the fines under section 654 if the trial court
determines that the fines were punitive and based on the same grounds. (§ 1260 [appellate court may remand “for
such further proceedings as may be justâ€]; see also Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1255 [trial
court may, but is not required to, exercise its discretion to modify sentence
after possible error identified on appeal].)
We note that if the trial court concludes that error occurred, it is not
required to stay the $1,434 fine on count two, as Arroyo urges, but may instead
stay the $600 fine imposed on count one, if the court’s factual findings
warrant such an approach. (§ 654,
subd. (a) [act
shall be punished under provision that provides for the
term].)
Arroyo
Forfeited Objections to Travel Restriction.
Arroyo
also challenges the probation condition that he not leave Humboldt County
without his probation officer’s permission, on both unreasonableness and
constitutional grounds. Trial courts
have broad discretion under section 1203.1 to impose conditions of
probation to promote rehabilitation and to protect public safety. (People
v. Olguin (2008) 45 Cal.4th 375, 379.)
Appellate courts generally review probation conditions for abuse of
discretion. (Ibid.) We agree with
respondent, however, that Arroyo forfeited his challenge by failing to object
below.
In
general, a condition of probation will be held invalid as unreasonable if it
(1) has no relationship to the crime of which the defendant was convicted,
(2) relates to conduct that is not in itself criminal, and
(3) requires or forbids conduct that is not reasonably related to future
criminality. (People v. Olguin, supra,
45 Cal.4th at p. 379; People v. Lent
(1975) 15 Cal.3d 481, 486.) Failure to timely
challenge a probation condition on these grounds forfeits the claim on
appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) “A timely objection allows the court to
modify or delete an allegedly unreasonable condition or to explain why it is
necessary in the particular case. The
parties must, of course, be given a reasonable opportunity to present any
relevant argument and evidence. A rule
foreclosing appellate review of claims not timely raised in this manner helps
discourage the imposition of invalid probation conditions and reduce the number
of costly appeals brought on that basis.
[Citations.]†(
This
forfeiture rule has particular force in this case because Arroyo not only
failed to object to the condition that he obtain permission before leaving
Humboldt County, but he also specifically told the trial court that he
understood and accepted the probation terms.
We therefore do not reach Arroyo’s argument that the probation condition
barring him from leaving Humboldt County without permission is invalid under
the factors set forth in Olguin,
For
similar reasons, we do not reach Arroyo’s alternative argument that the
probation condition unreasonably infringes on his constitutional right to
travel. (E.g., In re White (1979) 97 Cal.App.3d 141, 148 [probationer has
constitutional right to intrastate travel].)
“A probation condition that imposes limitations on a person’s
constitutional rights must closely tailor those limitations to the purpose of
the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]â€
(In re Sheena K. (2007)
40 Cal.4th 875, 890.) “[G]enerally,
given a meaningful opportunity, the probationer should object to a perceived
facial constitutional flaw at the time a probation condition initially is
imposed in order to permit the trial court to consider, and if appropriate in
the exercise of its informed judgment, to effect a correction.†(Id.
at p. 889.) Arroyo failed to object
to the travel restriction even though he had notice of it before the sentencing
hearing and had ample opportunity to challenge it during the hearing.
We
recognize that in some circumstances a failure to object to a probation
condition on constitutional grounds does not forfeit the issue for appellate
review. “In common with a challenge to
an unauthorized sentence that is not subject to the rule of forfeiture, a
challenge to a term of probation on the ground of unconstitutional vagueness or
overbreadth that is capable of correction without reference to the particular
sentencing record developed in the trial court can be said to present a pure
question of law. Correction on appeal of
this type of facial constitutional defect in the relevant probation condition, similar
to the correction of an unauthorized sentence on appeal, may ensue from a
reviewing court’s unwillingness to ignore ‘correctable legal error.’ [Citation.]â€
(In re Sheena K.,
italics omitted.) Still, such an
exception is not necessarily applicable when there are “ ‘circumstances
that do not present “pure questions of law that can be resolved without
reference to the particular sentencing record developed in the trial
court.†[Citation.] In these circumstances, “[t]raditional
objection and waiver principles encourage development of the record and a
proper exercise of discretion in the trial court.†[Citation.]’
[Citation.]†(
We
disagree with Arroyo’s contention, raised for the first time in his reply
brief, that his constitutional challenge presents a pure question of law. In stark contrast with two similar cases that
address restrictions on the right to travel, the record in this case lacks
evidence of the specific hardships, if any, that will be imposed on Arroyo as a
result of the condition. In
1245, a probation condition barred the defendant from leaving Los Angeles
County for any reason whatsoever. (
on all defendants convicted of a registerable sex offense. (Ibid.) The defendant filed a motion to modify the
condition after his employer asked him to occasionally travel out of the county
during the day. (Id. at pp. 1248-1249.)
The trial court denied the modification request, but the appellate court
reversed and concluded that the condition impermissibly infringed on the
defendant’s constitutional right to intrastate travel. (Id.
at pp. 1249-1251.) In doing so, the
appellate court noted that the constitutional right to intrastate travel is not
absolute. (Id. at p. 1250.) The
condition was found to be “constitutionally infirm,†in part because it failed
to take into consideration defendant’s particular
circumstances. (Ibid.)
Here,
the record is silent as to how Arroyo might be adversely affected by his travel
restriction. The probation report stated
that Arroyo had lived in Humboldt County since 1996 and that he planned to
continue living there. He is a
self-employed excavator, and there is no indication that he is required to
travel outside the county for his work.
Even if there was evidence that he was required to work outside the
county, we would be reluctant to strike the travel restriction altogether. Unlike the defendant in Smith, supra, 152 Cal.App.4th 1245, Arroyo is able to ask for
permission to leave the county under the express terms of his probation
condition, and there is no reason on this record to believe that permission
would be unreasonably withheld. In
remanding the matter to the trial court, the appellate court in
restrictions may be proper. It remanded
the case “to permit the trial court to fashion a less restrictive ban on
out-of-county travel than that imposed by the probation department’s regulation
but subject to whatever specific travel limitations the court finds are
appropriate in this case or, in the alternative, to eliminate the travel
restriction with regard to [defendant’s] work.â€
(Id. at p. 1252.)
Arroyo’s
reliance on In re White,
unavailing.
title="">[3] In White,
a defendant convicted of soliciting an act of prostitution was banned as a
condition of probation from specified areas of Fresno known for prostitution
activity. (Id. at pp. 143-144.)
The defendant at first accepted the condition, but later filed a
petition for a writ of habeas corpus to challenge it. (Ibid.) At the hearing on the defendant’s writ
petition, the trial court considered statistics on prostitution in Fresno, the
effect of the travel restriction on the defendant, and evidence showing that
similar restrictions on other prostitutes simply caused prostitution activity
to move to other areas. (
The
appellate court concluded both that the probation condition was unreasonable
and that it impermissibly infringed on the defendant’s constitutional right to
intrastate travel. (In re White, supra, 97
Cal.App.3d at p. 148.) But in doing
so, and like the appellate court in Smith,
it did not simply strike the condition.
(White at p. 151.) Instead, it directed the trial court to
either eliminate the condition or to modify it, such as by establishing
reasonable hours when the defendant could enter the restricted area for
specific and legitimate purposes. (
to strike or modify the condition without the development of a full record
specific to the particular defendant (cf. In
re Sheena K., supra, 40
Cal.4th at p. 887), as Arroyo asks us to do. (White
at pp. 151-152.)
Because
the sentencing record in this case lacks any information on how the restriction
affects Arroyo’s need to travel out of the county, we conclude that it would be
improvident to reach the merits of Arroyo’s constitutional challenge. Arroyo nonetheless has a remedy. He may petition the trial court to modify the
probation condition, provide evidence of his particular circumstances, and
argue why the condition is unreasonable or impermissibly interferes with his
probation]; People v. Smith,
III.
Disposition
The case is remanded to the trial
court for further proceedings consistent with this opinion. The trial court is directed to clarify the
basis (or bases) for the court fines imposed on counts one and two, and to stay
one of the fines if appropriate under section 654. In all other respects, the trial court’s order
is affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
The facts are taken from the preliminary hearing transcript, which constitutes
a factual basis for Arroyo’s plea under the parties’ stipulation.
