Filed 12/16/19 P. v. Diaz-Escobar CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL DIAZ-ESCOBAR,

Defendant and Appellant.

A156458

(San Francisco County

Super. Ct. No. SCN222609)

After shooting a gun near a public park, Angel Diaz-Escobar was convicted of violating the prohibition on possession of firearms by felons, under Penal Code Section 29800, subdivision (a)(1). He challenges his conviction on the ground that language in the verdict form improperly directed the jury to find he had a prior felony conviction, in violation of his constitutional rights to a jury trial and due process. He also challenges certain fines and fees assessed against him, asserting that the trial court’s failure to first hold a hearing on his ability to pay violated his constitutional rights. We affirm.

BACKGROUND

On March 30, 2014, near a park in San Francisco, Diaz-Escobar got into a dispute with another man and fired a gun either into the air or in the direction of the other man. When he was arrested shortly thereafter, Diaz-Escobar possessed a .38-caliber revolver. At the time, Diaz-Escobar was on probation for a second degree robbery conviction. (Pen. Code, § 211 et seq.)

Diaz-Escobar was tried for attempted murder (§ 664 and § 187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). The prosecution relied on Diaz-Escobar’s prior conviction not only to show that he was a felon for purposes of the felon in possession charge but also in connection with the other two counts. At trial, the jury received as evidence the underlying documents pertaining to the prior conviction, and Diaz-Escobar admitted that he had a robbery conviction. He also admitted to possessing a gun. He focused on disproving the murder and assault charges, and during closing arguments defense counsel told the jury it would be an “easy decision[] . . . to find [Diaz-Escobar] guilty of being in possession of a firearm. Guilty. We’re not disputing it.”

With respect to the felon in possession charge, the court instructed the jury, “the People must prove that [¶] 1. The defendant possessed a firearm; [¶] 2. The defendant knew that he possessed the firearm; [¶] AND [¶] 3. The defendant had previously been convicted of a felony.” (CALCRIM No. 2510.) The jury “may consider evidence, if any, that the defendant was previously convicted of a crime only for the limited purposes of proving,” inter alia, “whether the defendant suffered a previous conviction for second degree robbery in violation of Penal Code section 211, as alleged” in count 3. (CALCRIM No. 2510.) If the jury found Diaz-Escobar guilty on any count, it was instructed to determine whether the People had proven the allegation that he was previously convicted of a “violation of Penal Code section 211, on October 2, 2013.” (CALCRIM No. 3100.)

During its deliberations, the jury sent a question to the trial court: “ ‘We cannot make sense of the reference to October 2nd conviction versus Exhibit 22A (People’s), which does not . . . reference October 2nd. Please clarify as trying to establish felony charge for third count.’ ” The jury appeared to be confused because the relevant conviction documents for Diaz-Escobar were contained in Exhibit 21, not Exhibit 22A, which referred to a different individual. In addition, Diaz-Rodriguez was convicted of second degree robbery in October but sentenced in December.

After consulting the attorneys, the trial court advised the jury that “Count 3 relates to Mr. Diaz-Escobar only. Please see the exhibits related to Mr. Diaz Escobar.” Over defense counsel’s objection, the trial court also provided the jury with an amended verdict form for count 3 (felon in possession). Concerned that the verdict form did not track the First Amended Information, which referenced a date of December 31, 2013, for the robbery conviction, the court added language to refer to the alleged conviction. The amended verdict form read in relevant part:

We, the jury in the above entitled cause, find the defendant Angel Diaz-Escobar . . . (Guilty or Not Guilty) . . . of the crime of POSSESSION OF A FIREARM BY A FELON in violation of Penal Code Section 29800(a)(1) in that on or about March 30, 2014, . . . the said defendant did willfully and unlawfully possess a .38-Caliber 5 Shot Revolver, . . . the defendant having theretofore been duly and legally convicted of a felony, to wit second degree robbery in violation of Penal Code Section 211 in the City and County of San Francisco on or about December 31, 2013.

The verdict form further instructed that, if the jury finds the defendant guilty of count 3, it should proceed to determine whether “at the time of the commission of the possession of a firearm by a felon, defendant had been previously convicted of second degree robbery in violation of Penal Code Section 211 . . . on or about December 31, 2013.”

Ultimately, the jury deadlocked on the first two counts but returned a verdict of guilty on the felon in possession charge, and found the prosecution proved the allegation of a prior felony conviction. Diaz-Escobar subsequently agreed to plead guilty to a new count for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and the court granted the People’s motion to dismiss the first two counts. The court sentenced Diaz-Escobar to six years in state prison. Due to custody credit for time already served and Section 4019 work time credit, his sentence was deemed served, and on January 11, 2019, Diaz-Escobar was released on parole.

In addition, pursuant to Section 1202.4, subdivision (b), the trial court imposed the statutory minimum restitution fine of $300 per conviction, for a total of $600 in restitution fines, plus a ten percent administrative fee. For each conviction, the court also assessed a $40 court operations fee (§ 1465.8) and a $30 court facilities fee (Gov. Code, § 70373), for a total of $140 in court fees. The court also imposed a $300 parole revocation fine (§ 1202.45) that is stayed unless parole is revoked.

DISCUSSION

A.

Diaz-Escobar contends that the language in the verdict form alleging a prior felony conviction for second degree robbery violated his right to a jury trial and improperly lessened the prosecution’s burden of proving each element of the offense. We disagree.

A trial court may not direct a verdict against a criminal defendant, regardless of how overwhelming the evidence of guilt may be. (People v. Gray (2005) 37 Cal.4th 168, 201 (Gray); People v. Figueroa (1986) 41 Cal.3d 714, 724.) The prohibition on directed verdicts extends to “ ‘situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.’ ” (Figueroa, supra, 41 Cal.3d at p. 724.) This safeguard arises from the Sixth Amendment right to a jury trial as well as the right to due process guaranteed by the Fourteenth Amendment. (Id., at p. 725; see also Hurst v. Florida (2016) 136 S.Ct. 616, 621 (Hurst).) Due process requires “ ‘proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged,’ ” and requires the prosecution to prove every element of the offense by the same standard of proof. (Figueroa, supra, 41 Cal.3d at p. 725; see also Hurst, supra, 136 S.Ct. at p. 621.) We review the issue de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)

Diaz-Escobar does not dispute that the trial court correctly instructed the jury on the three elements of the felon in possession of a firearm charge: the defendant possessed a firearm; knew that he possessed a firearm; and was previously convicted of a felony. (§ 29800, subd. (a)(1).) (CALCRIM No. 2510.) Instead, he focuses on the allegation in the verdict form that the felony conviction was “second degree robbery in violation of Penal Code Section 211 in the City and County of San Francisco on or about December 31, 2013.” He contends that specifying a second degree robbery conviction erroneously relieved the jury of its duty to find the third element—that he was previously convicted of a felony.

We are unpersuaded. Rather than direct a verdict, the verdict form provided the jury with the option of selecting either “guilty” or “not guilty” on this count. Specifically as to the allegation that Diaz-Escobar was previously convicted of second degree robbery, the form provided the option of selecting either “proved” or “not proved.” The jury was free to return the verdict form indicating that Diaz-Escobar was “not guilty” and that the prosecution had “not proved” his prior conviction. (See Gray, supra, 37 Cal.4th at p. 201 [“the court’s instruction did not direct the jury to return a guilty verdict”; instead jury was given option of verdict forms indicating “guilty” or “not guilty”]). Indeed, the court instructed the jury to decide whether the People “proved the alleged conviction beyond a reasonable doubt” (CALCRIM No. 3100), and we presume the jury understood and followed the court’s instructions. (See People v. Johnson (2015) 61 Cal.4th 734, 770.)

People v. Brown (1988) 46 Cal.3d 432 (Brown) reinforces our conclusion. In that case, one of the required elements of the prosecution’s case was that the victim was a “peace officer.” (Id., at p. 443.) The trial court “instructed the jury on a point of statutory law—a point not open to dispute—that a Garden Grove police officer is a peace officer.” (Id., at pp. 443-444.) Our Supreme Court held that the trial court’s instruction did not improperly remove an element from the jury’s consideration because “[t]he jury was left to make all essential factual determinations, including whether the victim was a Garden Grove police officer.” (Id., at pp. 443-44 & fn. 6; compare People v. Flood (1998) 18 Cal.4th 470, 492 (Flood) [instruction that specific individuals were “peace officers” constituted partial directed verdict].) Similarly, here, while the verdict form correctly classified the alleged second degree robbery conviction as a felony, it left the jury free to determine whether the evidence presented by the prosecution proved that Diaz-Escobar had such a conviction.

Moreover, any error would have been harmless beyond a reasonable doubt. (People v. Hunter (2012) 202 Cal.App.4th 261, 270, 274, 278 [applying harmless error analysis to claim that instructional error constituted directed verdict and impermissibly lightened prosecution’s burden].) The jury had the underlying conviction documents for Diaz-Escobar’s robbery conviction. Diaz-Escobar repeatedly testified that he had a robbery conviction and possessed the gun. He was arrested with a gun on his person. His trial counsel told the jury the defense was “not disputing” the felon in possession charge and that it would be “easy” for the jury to return a guilty verdict on that count. (See Flood, supra, 18 Cal.4th at p. 504 [removing an element from jury’s consideration may be “harmless . . . where the defendant concedes or admits that element”].) The verdict form’s reference to the robbery conviction could not have made a difference.

B.

Diaz-Escobar asserts that the trial court’s imposition of fines and fees without a hearing concerning his ability to pay them violates his due process and equal protection rights, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Without deciding whether his rights were violated by the lack of a hearing, we hold that any potential error was harmless.

Relying on the principle that “a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty,” Dueñas held that “due process of law requires [a] trial court to . . . ascertain a defendant’s present ability to pay before it imposes” fines and assessments. (Duenas, supra, 30 Cal.App.5th at pp. 1164, 1166.) The facts presented in Dueñas were unusually compelling. Dueñas, an unemployed, homeless woman with cerebral palsy, supported her two children while living on public aid. (Id., at pp. 1160-1161.) Dueñas lost her driver’s license because she could not afford to pay her juvenile citations, then acquired three misdemeanor convictions for driving without a license because the accumulating criminal assessments and fines prevented her from recovering her license. (Id., at p. 1161.) “Key to the [Dueñas] holding was its concern for ‘the cascading consequences of imposing fines and assessments that a defendant cannot pay,’ which ‘[t]he record in this matter [Dueñas] illustrates.’” (People v. Caceres (2019) 39 Cal.App.5th 917, 924, citing Dueñas, supra, 30 Cal.App.5th at p. 1163.)

Because we conclude that any constitutional error based on Dueñas was harmless in this case, we do not address the People’s contention that Diaz-Escobar forfeited this argument. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 [forfeiture rule inapplicable because objection to minimum restitution fine under § 1202.4, subd. (b) would have been futile]); see also People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson).) Neither do we decide whether a trial court must always hold a hearing on the defendant’s ability to pay before imposing fines or fees, an issue on which our Supreme Court recently granted review. (See People v. Kopp, review granted November 13, 2019, No. S257844, 2019 Cal.LEXIS 8371.)

We conclude only that, on the facts of this case, any potential constitutional error arising from the trial court’s failure to hold a hearing on Diaz-Escobar’s ability to pay was harmless. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-77 [rejecting Dueñas claim where record showed any error was harmless]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [same]; Johnson, supra, 35 Cal.App.5th at pp. 139-40 [same].) Relying on the probation officer’s report, Diaz-Escobar argues that at the time of sentencing, he had only a tenth-grade education and was unemployed. The probation report indicated that his assets, liabilities, and income were all $0. However, according to the same report, Diaz-Escobar had housing available to him at his mother’s residence. He was single with no child support obligations. He reported to the probation officer that he was in good physical and mental health. He had prior work experience at a restaurant and in the mail room of a bank. Diaz-Escobar stated that his step-father owns a custodial business where he could be employed upon his release. Under these circumstances, we reject Diaz-Escobar’s contention that he would be unable to pay the fines and fees assessed by the trial court.

Further, unlike in Dueñas, Diaz-Escobar’s offenses were not crimes closely tied to poverty. He admitted he shot a gun near a public park. He was convicted of being a felon in possession of a firearm and assault with force likely to produce great bodily harm. These offenses are “not [] crime[s] either ‘driven by’ poverty or likely to ‘contribut[e] to’ that poverty such that an offender is trapped in a ‘cycle of repeated violations and escalating debt.’” (Caceres, supra, 39 Cal.App.5th at p. 928, citing Dueñas, supra, at p. 1164 & fn. 1; see also Johnson, supra, 35 Cal.App.5th at p. 139 [noting that the challenged fines “did not saddle [the defendant] with a financial burden anything like the inescapable, government-imposed debt trap Velia Duenas faced”].)

Finally, in Diaz-Escobar’s reply brief on appeal, he raises an argument based on the Excessive Fines Clause of the Eighth Amendment for the first time. He failed to raise any such argument in the trial court. Neither did he raise this argument in his opening brief on appeal. We therefore decline to address it here. (See People v. Clark (2016) 63 Cal.4th 522, 552 [argument forfeited where defendant both failed to raise it in opening brief and in trial court]; see also People v. Baker (2018) 20 Cal.App.5th 711, 720 [Eighth Amendment challenge forfeited when not raised at sentencing]).

In short, Diaz-Escobar has not demonstrated prejudicial error.

DISPOSITION

The judgment is affirmed.

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

SIMONS, Acting P. J.

_________________________

NEEDHAM, J.

A156458