P. v. Brown
Filed 4/24/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
LEE DERRICK BROWN,
Defendant
and Appellant.
E055586
(Super.Ct.No.
INF10000289)
OPINION
APPEAL
from the Superior Court
of
County. Jeffrey L.
Gunther, Judge. (Retired judge of the
Sacramento Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed with directions.
Allison
K. Simkin, 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, Meagan Beale and Heather
F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Lee
Derrick Brown alleges that his trial attorney was ineffective because he failed
to object to the imposition of a $10,000.00 restitution fine. We decline to find counsel ineffective, but
will remand the matter to afford the trial court the opportunity to exercise
its discretion regarding the amount of the fine.
Facts and procedural history
Defendant
is a 32-year-old mentally disabled man with a history of
in a non-operable van in a vacant lot next to an apartment building in Desert
Hot Springs where J.G. and her mother A.C. lived in separate units. Sometimes A.C. gave defendant food; sometimes
she allowed him to go into J.G.’s apartment to wash his hands or take a shower;
in the past she had tried to help him get into a homeless shelter.
On February 21, 2010, while J.G. was
away, A.C. let defendant into J.G.’s apartment to wash up. That evening, after J.G. returned home, defendant,
who appeared to be “flirting†with her, gave her a “love letter†and became
angry when she refused to accept a drink from him or let him spend the night in
her apartment. Defendant poured half a
bottle of “Cisco†(the alcoholic drink he was offering her) over J.G. and
snatched her cell phone out of her hand and threw it in the street when she
tried to make a call. The Cisco liquid
got into J.G.’s eyes and made them sting.
He threatened to have someone “shoot up†her house; he broke a window in
the room where her children slept; and, from about 20 feet away, he threw the
Cisco bottle at her as she stood outside by her door. Glass from the bottle shattered on the wall
about a foot above her head and broken glass and liquor fell into her
hair. J.G. was frightened by defendant’s
behavior. Her children screamed as the
window in their room broke.
An
information filed April 7, 2010,
charged defendant with two felonies and two misdemeanors: making a criminal
threat (Pen. Code
title="">[1] § 422, count 1); assault with a deadly weapon,
not a firearm (§ 245, subd. (a)(1), count 2); vandalism (§ 594, subd. (b)(1),
count 3); and resisting arrest (§ 148, subd. (a)(1), count 4.) The information alleged that defendant had
suffered a prior conviction for felony vandalism (§ 594, subd. (b)(1)), and had
not remained free of confinement for five years subsequent to his release from
prison for that offense (§ 667.5, subd. (b)).
The information further alleged that, in 1997, defendant had suffered a
conviction for carjacking (§ 666/215), a serious and violent felony.
subd. (c)(1).
On
September 13, 2010,
defendant’s lawyer, Joshua Mulligan (“Mulliganâ€), expressed doubt about his
client’s competence to stand trial.
Mulligan had had an extensive interview with defendant and had found him
to be “very unsophisticated†and his ability to understand and communicate
“very limited.†Mulligan had also
reviewed defendant’s criminal and medical records and noted that he had been
found incompetent to stand trial as recently as 2009. Mulligan asked the court to refer defendant
to Inland Regional Center (IRC), where he had previously been a client, for
did not object to the request, but wanted a second doctor to also examine
defendant. After questioning defendant,
the court suspended the criminal
proceedings and referred him for the psychological evaluations.
Three reports were
obtained. Two were from private
psychologists, Dr. William Jones and Dr. Michael Leitman. The third consisted of an update letter from
IRC that included a copy of a psychological evaluation of defendant conducted
by their psychologist, Dr. Edward Pflaumer, in 2007.
Dr. Pflaumer
reported that defendant’s IQ was 61; he had never had any formal employment;
and he received monthly SSI payments.
Dr. Pflaumer also summarized the reports of six other psychologists who
had variously found defendant’s IQ to be between 53 and 59. The IRC letter said that the only available
IRC facility was unlocked and that defendant might not be successful in an
unlocked facility and could place others at risk.
Dr. Jones examined
defendant at the request of the district attorney’s office. He found defendant competent to stand trial,
but documented his “limited intelligence†and lack of an employment history.
Dr. Leitman
examined defendant at the request of defense counsel. He interviewed defendant and reviewed the
reports of Dr. Pflaumer and Dr. Jones.
In Dr. Leitman’s opinion, “he would not be competent [to stand trial] as
defined by Penal Code 1368.â€
The court held a
section 1369 hearing on May 4, 2011. The court indicated that it had read the
three reports, had considered defendant’s own testimony, and had concluded that
he was competent to stand trial.
On July 7, 2011, a jury found defendant
guilty of all the charged offenses. In a
separate hearing on July 8, 2011,
the court found the alleged priors true, but deferred sentencing and referred
the matter to probation for a report.
The
probation report, dated September 30,
2011, documented that defendant had completed 10th grade and had
never been employed. His sole source of
income was a $900 monthly social security disability payment that he received
only when he was not in custody.
Included in the report was a statement from defense counsel detailing
his client’s background as an abused child and mentally-retarded adult who had
been “abandoned by his family†and been “treated like a worthless piece of
human garbage his whole life,†never receiving any effective mental health
treatment. Counsel argued that defendant
should not be sent to prison, where he would only get worse and likely
re-offend when he was released, but to Mental Health
Court for possible placement in a highly
supervised setting.
The probation
officer writing the report expressed empathy with defendant’s situation but
emphasized that he now had a criminal record that included two strikes and that
IRC did not have a facility appropriate for him. The report recommended that defendant be
sentenced to state prison and be required to pay, among other costs and fees,
$50 in victim restitution, a “restitution
fine . . . pursuant to section1202.4†in the amount of
$10,000, and a parole revocation fine pursuant to section 1202.45, suspended
unless parole is revoked.
name="_ftnref3" title="">[3]
Meanwhile, on October 21, 2011, defense counsel
filed an extended “Statement in Mitigation†reiterating his client’s mental
status and requesting that he be considered for probation with mental health
supervision. Counsel opined that
“Unfortunately, in this case and many others, the prosecution opts for the
harshest, most costly, and least effective solution.â€
At the sentencing
hearing on October 21, 2011,
the court indicated its feeling that, in view of defendant’s violent
personality and the “terror†he had generated in the victims of the current
crime, “the maximum term is in order.â€
But the court also expressed concern that defendant receive the most
just sentence possible. “Quite frankly,
I was moved by Mr. Mulligan’s statements to the Probation Department, his diligent
work and preparation of the statement in mitigation. I’m willing to consider those factors.†The court then suspended the sentencing
proceedings and referred the matter to the Department of Corrections (DOC) for
“diagnosis and a recommendation†pursuant to section 1203.03.
The DOC study,
filed on November 23, 2011,
“was prepared with the objective of assessing Mr. Brown’s potential for
functioning successfully on probation or under other supervision and the level
of threat to the community if he should fail to live up to that
potential.†Under the heading of “work
skills†the study said “None . . . .†The report concluded with a recommendation
that defendant be committed to state prison because, in view of his history, he
would likely be unable to comply with terms of probation and represented a
significant risk to the community.
At the rescheduled
sentencing hearing on January 31, 2012,
defense counsel again argued that defendant was a disabled individual who
should be sentenced to probation with mental health terms, not to prison. The district attorney responded that
defendant’s “exposure†was ten years in prison but that the People were
requesting only seven. The court said it
was not sure that prison was the best place for defendant, but that the DOC
recommendation was unequivocal. It did
not want to “warehouse†him, but it did not know of any better place for
him. Whereupon it sentenced him to seven
years in state prison.
The parties then
began to discuss defendant’s custody credits.
Defense counsel was concerned that “the credit rules have changed
multiple times. It may work under
different tiers. And I don’t want him to
be deprived of credits.†The court
agreed: “It would be my intent that Mr. Brown receive every amount of credit
that he’s entitled to.†The court and
both counsel agreed to schedule a separate hearing to determine custody
credits.
When the
discussion moved to the question of fines and fees, the court told defendant
(twice) that it intended to impose only the “regular†and “normal†fines and
fees “associated with this event†against him.
“I do not have those before me at this time.†Defendant agreed to accept the fines,
although the amounts remained unstated.
Both counsel stipulated that the matter of fines would be “discussed
when we come back for the credits[].â€
Immediately after
the stipulation, the district attorney referred the court to page 18 of the
probation officer’s report for information regarding the fines, and there was
an unrecorded “pause in the proceedings.â€
After the pause, the court said simply, “Very well. We are back on the record,†and began to
read, without comment and almost verbatim, the recommendation section of the
probation report.
“And . . . there is a recommendation by the
probation officer that a restitution fine of
$10,000 . . . is provided pursuant to 1202.4 of the Penal
Code . . . .
Additional parole restitution fine imposed pursuant to 1202.45 Penal
Code in the amount of $10,000 is suspended unless parole is revoked.â€
Defense Counsel
Mulligan did not object to any of the fines or fees.
Defendant’s
sole argument on appeal is that trial counsel was ineffective when he failed to
object to the $10,000 restitution fine, which he characterizes as “excessive
and unjust.†The People respond that the
record is insufficient to demonstrate that counsel was ineffective.
Ineffective Assistance of Counsel
In order to
establish a claim of ineffective assistance of counsel (IAC), a defendant must
demonstrate (1) that his counsel’s performance was deficient in that it fell
below an objective standard of reasonableness under prevailing professional
norms, and (2) that the deficient representation prejudiced defendant so
seriously as to deprive him of a fair trial.
Prejudice is shown when there is a reasonable probability that defendant
would have obtained a more favorable result absent counsel’s error; a
reasonable probability is one great enough to undermine confidence in the
outcome. (People v. Williams (1997) 16 Cal.4th 153, 214-215, citing
668, 687, and In re Avena (1996) 12
Cal.4th 694, 721, Accord, People v.
Hernandez (2012) 53 Cal.4th 1095, 1105.)
Hence, an IAC claim has two components: deficient performance and
prejudice. If defendant fails to
establish either component, his claim fails.
Here, it is not
apparent that Mulligan’s performance was deficient or that the outcome for
defendant would have been more favorable if he had acted differently. By dint of great effort, he had secured a
significantly shorter prison sentence for his client. It is possible that whatever transpired
during the unrecorded “pause in the proceedings†caused him to believe that a
challenge to the amount of the fine might do more harm than good. On a silent record, we cannot make this
determination one way or the other.
The other thing we
cannot determine is whether the trial court understood its discretion to impose
restitution fines in amounts different from those recommended by the probation
officer, and whether it exercised its independent discretion.
Standard of Review
A
trial court has broad discretion to determine the amount of restitution fine to
impose, within the statutory range. (
396, 406 (Urbano); § 1202.4, subds.
(b)-(d).) Nonetheless, “‘The amount of
the forfeiture must bear some relationship to the gravity of the offense that
it is designed to punish.’ [Citations.]†(Urbano,
at p. 406.) Defendants bear a heavy
burden when attempting to show a trial court abused its discretion, but a
court’s erroneous understanding of its discretionary power is not a true
exercise of that discretion. (
279, 282.) A failure to exercise discretion may constitute an abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.) When a sentencing choice “is based on an
erroneous understanding of the law, the matter must be remanded for an informed
determination.†(People v. Downey (2000) 82 Cal. App.4th 899, 912.)
Section 1202.4
The version of
section 1202.4 in effect when defendant was sentenced provided, in relevant
part: “In every case where a person is convicted of a crime, the court shall
impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so . . . and states
those reasons on the record. [¶] (1) The restitution fine shall be
the offense, but shall not be less than two hundred forty dollars ($240)
starting on January 1, 2012 . . . and not more than ten
thousand dollars ($10,000), if the person is convicted of a
felony . . . .
[¶] (2) In setting a felony
restitution fine, the court may determine the amount of the fine as the product
of the minimum fine pursuant to paragraph (1) multiplied 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.†(Former § 1202.4, subd. (b), italics added.)
Subdivision
(d) of the statute identifies some of the factors a court should consider in
setting the amount of the fine, “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 any losses
as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to
the victim or his or her dependents as well as intangible losses, such as
psychological harm caused by the crime.
Consideration of a defendant’s inability to pay may include his or her
future earning capacity. A defendant
shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the
factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be
required.†(§ 1202.4, subd. (d); see
also People v. Dickerson (2004) 122
Cal.App.4th 1374, 1379-1380.) A
defendant’s inability to pay is relevant only to the question of how much over
the minimum the fine should be, but the fine should be “commensurate with the
seriousness of the offense.†(§ 1202.4,
subd. (b)(1).)
On
this record, it is not clear that the court understood and exercised its
discretion. Its assurances to defendant
that it would impose “only the normal and regular fines and fees†but did not
have those in front of it were followed by an almost verbatim reading of the
probation officer’s recommendations from the page of the report to which it had
been referred by the district attorney.
This suggests that the court may not have realized that it, not the
probation officer, had discretion to determine the appropriate amount of the
restitution fine—i.e. what it felt
was normal and regular—in light of the factors delineated in section
1202.4. It is true that a trial court is
not required to state its reasons for selecting a certain amount or hold a
separate hearing on the matter, but in this case it is not readily apparent
that $10,000 would be the “normal†and “regular†fine promised to defendant.
First,
the amount bears no obvious relationship to the formula suggested in section
1202.4, subdivision (b). Calculated
under that formula, the minimum of $240 would be multiplied by seven (the
number of years in defendant’s prison sentence) and that result would in turn
be multiplied by two (the number of felonies of which he was convicted), for a
total of $3,360. Despite the fact the
formula is not mandatory, the criteria the probation officer used in
recommending almost three times that amount for a crime in which no one was
physically injured and property damage was minimal, are not apparent.
Secondly, all the
information in the report demonstrates that defendant cannot now and is
unlikely ever in the future to be able to pay a $10,000 fine. He is seriously mentally disabled, has never
been employed, and, according to the DOC report, has no employment skills. It is true that when he is not incarcerated
he receives $900 per month in a social security disability check, but even
assuming those payments will resume when he is released, his ability to live on
that amount and pay off a $10,000 fine (or whatever is left after his prison
earnings are credited) is virtually non-existent.
Finally, it
appears from our review of the record that in the lengthy, complicated, and
occasionally hostile
name="_ftnref4" title="">[4] proceedings in this case all the entities
involved—the probation department, the court, and both counsel—may have simply
overlooked facts which might have led to a different amount under the
guidelines specified in section 1202.4.
Accordingly, we
will remand to give the trial court an opportunity to exercise independent
discretion regarding the amounts of the restitution and parole revocation
restitution fines imposed reminding the court that it is not bound by the
probation officer’s recommendation. (§§
1202.4, subd. (b) & 1202.45, subd. (a).)
The
matter is remanded for the trial court to exercise its discretion regarding
the amounts of the restitution and
parole revocation restitution fines imposed.
(§§ 1202.4, subd. (b) & 1202.45, subd. (a).) In all other respects, the judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
KING
Acting
P. J.
MILLER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The carjacking appears to have been committed
in 1996, when defendant was 16.
