People v. Gonzalez CA4/1 ( 2021 )

Filed 4/23/21 P. v. Gonzalez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077760
Plaintiff and Respondent,
v. (Super. Ct. No. SCS311731)
WILLIAM ALFREDO GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Dwayne K. Moring, Judge. Affirmed.
Paul Stubb Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
A jury found defendant William Alfredo Gonzalez guilty of robbery and
driving or taking a vehicle without the consent of the owner. (Pen. Code, §
211; Veh. Code, § 10851, subd. (a).)1 Gonzalez admitted an allegation that he
had a prior conviction for felony theft of an automobile. (§ 666.5, subd. (a).)
The court sentenced Gonzalez to a term of four years, with 259 days of
presentence custody credits. The court also imposed several fines and fees.
On appeal, Gonzalez seeks remand for consideration of pretrial mental
health diversion under section 1001.36 following the Supreme Court’s
decision in People v. Frahs (2020) 9 Cal.5th 618 (Frahs). Appellant also
requests we stay or strike the fees and fines because the superior court
imposed them without conducting an ability-to-pay hearing. In the
alternative, Gonzalez contends his trial attorney failed to provide effective
assistance of counsel when she failed to seek a determination of his eligibility
under Frahs and/or failed to request an ability-to-pay hearing before the
imposition of the fees and fines.
We conclude that Gonzalez forfeited both claims and has not shown
ineffective assistance of counsel. We, therefore, affirm the judgment.
FACTUAL BACKGROUND
A. The Vehicle Theft
On November 5, 2019, the victim drove to work at the Knights Inn
hotel in San Ysidro, California, and parked her SUV in front of one of the
hotel rooms. At the end of her shift, the victim returned to the parking lot
only to realize that her vehicle was missing. Upon watching the hotel’s
surveillance video, she saw a man enter the vehicle with a purse in his hands
1 All further unspecified statutory references are to the Penal Code.
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shortly after her lunch break and drive away. She did not give permission to
anyone to use her vehicle that day.
The victim immediately contacted one of her credit card companies to
report a stolen card. During that call, she learned someone made
transactions using her card that day at a 7-Eleven store approximately three
quarters of a mile away from the Knights Inn. She did not make any
purchases that day.
The victim’s vehicle was found a few hours later in a Best Buy parking
lot in Chula Vista. Her purse was missing, but the police found her driver’s
license, credit cards, and the spare car key. They also found items in the
vehicle that did not belong to the victim, including an identification card with
Gonzalez’s name, a men’s dress shirt, a can of beer, and metal knuckles.
B. The Best Buy Incident
At approximately 5:30 p.m. on November 5, 2019, Gonzalez entered the
Best Buy store in Chula Vista. The security guard stationed at the front of
the store noticed that Gonzalez entered “quickly . . . through the exit doors,”
“[l]ike angry in a huff,” and “acting erratic.” When the security guard greeted
him, Gonzalez “muttered to himself,” cussed, and acted “standoffish.”
Gonzalez grabbed a shopping basket and began indiscriminately
pulling products from the shelves and throwing them into the basket. While
walking through the store, Gonzalez was “out of it,” “[l]ike he was on
something,” walking “[l]ike an angry bull just banging against cages.” He
was mumbling to himself and waving his hands above and around his head.
Gonzalez’s behavior concerned the security guard, who immediately
communicated to the other store employees through a walkie talkie, stating,
“Keep an eye on this guy right here. He’s acting kind of weird.”
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The security guard directed an employee to approach Gonzalez.
Gonzalez told the first employee who did so to “F off” and that he didn’t need
any help. Two other employees approached Gonzalez with the same outcome.
When the security guard approached him, Gonzalez became “belligerent.” At
this point, the store manager directed the security guard to escort Gonzalez
out of the store.
As Gonzalez was directed to leave, he began cussing and grabbing more
products. When asked to return the products, Gonzalez said, “F off,” he’s
“leaving right now with everything,” and “it doesn’t matter.” By then, the
police had already been called.
Gonzalez got as far as the exit doors, past the checkout area, when the
security guard blocked him and again asked for the products. Gonzalez
attempted to headbutt the security guard and swung the shopping basket at
him. Gonzalez told the security guard to let him leave, that he was going to
come back with his “homies,” and that he was going to start killing
everybody.
During this “tussle,” Gonzalez began snapping at people with his
mouth as if to bite them. Two customers intervened to help, one of them
restraining Gonzalez and pulling him to the ground. With Gonzalez on the
ground, the security guard tried to take the shopping basket away, at which
point Gonzalez bit the security guard’s hand and broke skin. Gonzalez then
bit one of the customers on the chest while “wrestling around and being
difficult.” The store merchandise was eventually retrieved from Gonzalez,
and he was released. He left the store yelling, “I’m coming back with my
homies. I’m going to kill all of you.”
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C. Gonzalez’s Arrest
When Gonzalez left the Best Buy store, he entered the stolen SUV and
drove to a different location in the same parking lot near the Walmart store.
By the time the police arrived, Gonzalez had already exited the vehicle and
was walking towards Walmart.
When the first officer arrived on the scene, he approached Gonzalez
with gun drawn and directed him to get on the ground. Gonzalez refused to
cooperate and continued towards Walmart, saying, “Sorry, sir. I’m going to
go shopping.” Because Gonzalez continued to refuse to comply with the first
officer’s directives, the officer activated his K-9, which immediately caused
Gonzalez to get on the ground. During this interaction, a second officer
arrived and arrested Gonzalez.
After Gonzalez was detained, one of the officers patted him down and
found a key to the stolen SUV. A subsequent search revealed a white
crystalline substance loose in Gonzalez’s pocket, which the officers on the
scene believed was methamphetamine.
The two officers who arrested Gonzalez both had extensive training in
drug detection and impairment, and testified that Gonzalez appeared to be
under the influence of drugs. They noticed that Gonzalez displayed
symptoms consistent with methamphetamine use, including sweating
profusely, rapid movement, rigid muscle tone, flexed jaw muscles, rapid
speech, constant movement of the fingers, and disheveled appearance.
DISCUSSION
A. Eligibility for Pretrial Mental Health Diversion
Gonzalez seeks a limited remand for consideration of pretrial mental
health diversion following the Supreme Court’s decision in Frahs, supra, 9
Cal.5th 618. We conclude that because section 1001.36 was effective when
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Gonzalez was charged, he forfeited his claim of eligibility by failing to raise
the issue with the trial court. Gonzalez also has not shown that his defense
counsel provided ineffective assistance for failing to seek a pretrial mental
health eligibility hearing.
1. The Request for a Limited Remand Has Been Forfeited
Effective June 27, 2018, the Legislature enacted a discretionary
pretrial diversion program for people with qualifying mental disorders. (§§
1001.35, 1001.36, added by stats. 2018, ch. 34, § 24; Frahs, supra, 9 Cal.5th
at p. 626 [discussing enactment of the diversion statute].) A stated purpose
of the program, known as “mental health diversion,” is to increase the
diversion of defendants with mental disorders and mitigate their entry and
reentry into the criminal justice system while protecting public safety. (§
1001.35, subd. (a).)
“As originally enacted, section 1001.36 provided that a trial court may
grant pretrial diversion if it finds all of the following: (1) the defendant
suffers from a qualifying mental disorder; (2) the disorder played a
significant role in the commission of the charged offense; (3) the defendant’s
symptoms will respond to mental health treatment; (4) the defendant
consents to diversion and waives his or her speedy trial right; (5) the
defendant agrees to comply with treatment; and (6) the defendant will not
pose an unreasonable risk of danger to public safety if treated in the
community.” (Frahs, supra, 9 Cal.5th at pp. 626–627; § 1001.36, subds.
(b)(1)(A)–(b)(1)(F).)
Here, Gonzalez was sentenced well after the effective date of the
mental health diversion statutes. He did not request mental health diversion
at any point during the trial court proceedings. It is well established that the
rule of forfeiture applies when a defendant has the opportunity to request a
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trial court to grant discretionary relief but does not raise the issue until
appeal. (Cf. People v. Trujillo (2015) 60 Cal.4th 850, 856 [forfeiture after
failing to challenge a fee order]; People v. Carmony (2004) 33 Cal.4th 367,
375–376 [forfeiture when the defendant failed to seek dismissal pursuant to
section 1385]; People v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture when the
defendant fails to object to discretionary sentencing choices].) Gonzalez failed
to avail himself of the mental health diversion program that was fully
available to him from the outset. His failure to make a request in the trial
court forfeited his claim on appeal.
2. No Showing of Ineffective Assistance of Counsel
In the alternative, Gonzalez argues that his trial counsel was
ineffective for failing to request an eligibility hearing for pretrial mental
health diversion under section 1001.36. Gonzalez has not met his burden to
establish ineffective assistance of counsel.
“An ineffective assistance claim has two components: A [defendant]
must show that counsel’s performance was deficient, and that the deficiency
prejudiced the defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521
(Wiggins); Strickland v. Washington (1984) 466 U.S. 668, 687–696
(Strickland).) Both “are mixed questions of law and fact subject to our
independent review.” (In re Gay (2020) 8 Cal.5th 1059, 1073.)
“There are countless ways to provide effective assistance . . . [and]
[e]ven the best criminal defense attorneys would not defend a particular
client in the same way.” (Strickland, supra, 466 U.S. at p. 689.) And “to
establish deficient performance, a [defendant] must demonstrate that
counsel’s representation ‘fell below an objective standard of reasonableness,’ ”
as measured by “ ‘prevailing professional norms.’ ” (Wiggins, supra, 539 U.S.
at p. 521, italics added; see Bobby v. Van Hook (2009) 558 U.S. 4, 7.) “When
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applying this standard, we ask whether any reasonably competent counsel
would have done as counsel did. [Citation.] . . . . Judicial review of counsel’s
performance is deferential; to establish deficient performance, the defendant
‘must overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.” ’ ” (In re Gay,
supra, 8 Cal.5th at p. 1073; Harrington v. Richter (2011) 562 U.S. 86, 105
[“standard for judging counsel’s representation is a most deferential one”];
Bell v. Cone (2002) 535 U.S. 685, 702.)
Gonzalez’s “burden in this regard ‘is difficult to carry’ in this case,
because this is a direct appeal and the record does not disclose the reason for
counsel’s [actions]. [Citation.] For those reasons, we may reverse ‘only if (1)
the record affirmatively discloses counsel had no rational tactical purpose for
the challenged act or omission, (2) counsel was asked for a reason and failed
to provide one, or (3) there simply could be no satisfactory explanation.’ ”
(People v. Arredondo (2019) 8 Cal.5th 694, 711, italics added.)2
There may well have been reasons why trial counsel chose not to
request diversion. “Unlike a later reviewing court, the [trial] attorney
observed the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.”
(Harrington v. Richter, supra, 562 U.S. at p. 105.) Trial counsel may have
concluded Gonzalez would not have successfully met his burden of proving
his eligibility for mental health diversion, especially where there was little or
2 “ ‘All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.’ ” (People v. Hoyt (2020) 8 Cal.5th
892, 958; see also People v. Mayfield (1993) 5 Cal.4th 142, 188 [“tactical
choices presented to us on a silent record . . . are better evaluated by way of a
petition for writ of habeas corpus, and on direct appeal we reject them”].)
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no evidence that his mental disorder played a significant role in the
commission of the charged offenses.
Because we cannot determine on this appellate record why counsel did
not request mental health diversion, the issue is better left to habeas corpus,
where such questions may be pursued. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267.) For purposes of this direct appeal, the claim was
forfeited by Gonzalez’s failure to raise it below.
B. Imposition of Fines and Fees
At sentencing, the superior court imposed several fines and fees,
including a $3,000 restitution fine pursuant to section 1202.4, subd. (b), a $40
court operations assessment pursuant to section 1465.8, and a $30 criminal
conviction assessment pursuant to Government Code section 70373.
Gonzalez maintains that we should stay or strike the imposed fees because
the court did not conduct an ability-to-pay hearing pursuant to People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
In Dueñas, the court concluded that due process “requires the trial
court to conduct an ability to pay hearing and ascertain a defendant’s present
ability to pay before it imposes court facilities and court operations
assessments under Penal Code section 1465.8 and Government Code section
70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court also held that
“although Penal Code section 1202.4 bars consideration of a defendant’s
ability to pay unless the judge is considering increasing the fee over the
statutory minimum, the execution of any restitution fine imposed under this
statute must be stayed unless and until the trial court holds an ability to pay
hearing and concludes that the defendant has the present ability to pay the
restitution fine.” (Dueñas, supra, at p. 1164.)
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1. Gonzalez Forfeited His Claim Under Dueñas
Relying on Dueñas, Gonzalez asserts that the imposition of the above-
listed fines and fees without any findings regarding his ability to pay them
violated his right to due process.
The record establishes that Gonzalez did not object to the imposition of
the fines and fees when they were imposed. In People v. Gutierrez (2019) 35
Cal.App.5th 1027, the court concluded that a similar challenge to imposed
fees and fines was forfeited because the defendant had every incentive to
object to the imposition of a restitution fine that exceeded the statutory
minimum based on inability to pay, and the statute (§ 1202.4, subd. (c))
expressly permitted such a challenge, but the defendant failed to make such
an objection. (Gutierrez, supra, at p. 1033.) The court also stated, “[a]s a
practical matter, if Gutierrez chose not to object to a $10,000 restitution fine
based on an inability to pay, he surely would not complain on similar grounds
regarding an additional $1,300 in fees.” (Ibid.)
Applying that same reasoning to this case, we conclude that Gonzalez
forfeited his arguments under Dueñas by failing to assert an inability to pay
objection when the court imposed restitution fines on him exceeding the
statutory minimum of $300. (§ 1202.4, subd. (b)(1); see also, People v.
Jenkins (2019) 40 Cal.App.5th 30, 39–41 [Dueñas arguments forfeited where
defendant did not object to statutory maximum restitution fee]; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1059, 1061 [same]; People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1153–1154 [same].)
2. No Showing of Ineffective Assistance of Counsel
Lastly, Gonzalez contends that trial counsel was ineffective for failing
to request an ability-to-pay hearing before the imposition of the assessments
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and the restitution fine. Again, we conclude Gonzalez has not met his burden
to establish he received ineffective assistance.
Gonzalez fails to meet his burden to demonstrate counsel had no
tactical purpose for failing to seek an ability-to-pay hearing. We must
therefore assume that this decision was part of defense counsel’s strategy.
For instance, counsel may have recognized that, as a result of Gonzalez’s
relative youth, his work history, and his short term of incarceration, that the
trial court would have found him able to pay based not only on prison wages
but also on post-incarceration earnings. (§ 1202.4, subd. (d) [“Consideration
of a defendant’s inability to pay may include his or her future earning
capacity.”]; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [trial court
may presume a defendant will have the ability to pay the restitution fine
from future wages, including those earned in prison].)
Faced with a silent record, we are unable to fairly evaluate counsel’s
performance. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
Without some indication in the record that trial counsel’s decision to forego
an ability to pay hearing fell below the standard of reasonableness, we will
defer to counsel’s tactical decision in this case. (See People v. Scott (1997) 15
Cal.4th 1188, 1212; People v. Holt (1997) 15 Cal.4th 619, 703; People v. Lucas
(1995)12 Cal.4th 415, 437.) This is one of those instances where the
evaluation of a claim of ineffective assistance of counsel will have to await a
petition for writ of habeas corpus, should the defendant believe there is a
viable claim that can be pursued.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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