People v. Sabala CA3 ( 2021 )

Filed 3/9/21 P. v. Sabala CA3
See concurring & dissenting opinion
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090574
Plaintiff and Respondent, (Super. Ct. No. 19FE010199)
v.
NICHOLAUS ALEXANDER SABALA,
Defendant and Appellant.
After a jury found defendant Nicholaus Alexander Sabala guilty of first degree
residential burglary (Pen. Code, § 459; all statutory section references that follow are
found in the Penal Code), and found true the allegation that another person other than an
accomplice was inside the home during the burglary (§ 667.5, subd. (c)(21)), the trial
court sentenced him to four years in state prison and imposed various costs. On appeal,
defendant contends: (1) there was insufficient evidence for his conviction; and (2) the
trial court improperly imposed costs after determining defendant was unable to pay, and
without first holding a hearing to determine defendant’s ability to pay. We affirm the
judgment and remand for correction of the abstract of judgment.
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FACTS AND PROCEDURAL HISTORY
Around 10:00 p.m. on June 9, 2019, a Sacramento homeowner, asleep in her bed,
woke to the sound of her doorbell ringing. The homeowner saw no one at the front door,
but later heard a “rustling” sound by the “shrubs” “along the driveway” of the house. She
called 9-1-1.
While making the call, the homeowner saw “a man trying to chisel off [the] screen
and come through [the] kitchen window.” The man was “holding something in his hand,
trying to pry [the] screen off.” Later, the man “jumped [a] gate and ended up in the
backyard.”
Minutes later, a Sacramento police officer detained defendant in the neighborhood
Defendant had several plastic bags, which held assorted “junk,” including used paper
cups.
After a “field showup,” and due to his stature and shape, the homeowner
positively identified defendant as the man she saw outside her home that night.
The homeowner observed that the window screen had “scratch marks on it, and
the screen was half removed but still attached to the window.” The windows and screens
were “brand new,” as a sale of the house was pending. A “For Sale” sign was outside her
home.
In closing statements, the prosecutor argued defendant’s “intent was to go inside
and try to steal something . . . . He sees if someone is home. He’s there late and when
it’s dark out. He tries to pry the window open.”
Defense counsel argued it was “absolutely . . . possible” that defendant intended to
steal items from inside the home. But that was “not the only possible explanation.”
Another possibility was that defendant intended “to find a place . . . to sleep for the night,
a place to squat for the night,” given the “for sale sign in front of” the house, and the
evidence that defendant was homeless -- the “bags full of junk” defendant had.
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In August 2019, a jury found defendant guilty of first degree burglary (§ 459) and
found true the allegation that another person other than an accomplice was present during
the burglary (§ 667.5, subd. (c)(21)).
In October 2019, the trial court imposed a sentence of four years (the middle term)
in state prison.
Regarding costs, the trial court ordered defendant to pay a mandatory restitution
fine of $300 (§ 1202.4), a suspended parole revocation fine of $300 (§ 1202.45), a $40
court security fee (§ 1465.8), and a $30 facility fee (Gov. Code, § 70373). The trial court
explained that it “waived for inability to pay” “[a]ll non-mandatory fees and fines.”
Neither party commented on the costs at the hearing.
This appeal followed.
DISCUSSION
I
Insufficient Evidence of Intent to Steal
Defendant argues we must reverse his conviction, because there was insufficient
evidence that he intended to steal anything from inside the home. The People disagree.
We conclude the evidence was sufficient.
We review claims concerning the sufficiency of the evidence “in the light most
favorable to [the People] and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Lewis (1990)
50 Cal.3d 262, 277.) On appeal, we must affirm the conviction as long as a rational trier
of fact could have found guilt based on the evidence and the inferences reasonably drawn
therefrom. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
To sustain a burglary conviction, we ask whether the jury could reasonably
determine that the defendant possessed the intent to commit a felony at the time of
entering the dwelling. (See People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166;
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§ 459 [burglary elements include “intent to commit grand or petit larceny or any
felony”].) But a defendant’s intent is rarely susceptible of direct proof and must usually
be inferred from all of the facts and circumstances disclosed by the evidence. When the
evidence justifies a reasonable inference of felonious intent, we will not disturb the
verdict on appeal. (People v. Holt (1997) 15 Cal.4th 619, 669-670.)
It is undisputed that evidence defendant removed part of a window screen is
sufficient to prove unlawful entry. (See Magness v. Superior Court (2012) 54 Cal.4th
270, 273 [“It has long been settled that the slightest entry by any part of the body or an
instrument is sufficient”; “entry” occurs when “a part of the body or an instrument . . .
penetrate[s] the outer boundary of the building”].)
As for defendant’s intent at the time of entry, the facts here justify the jury’s
finding that defendant had intent to steal an item from inside the home, because – as the
prosecutor argued – defendant tried to remove a window screen at night (without the
homeowner’s permission). “ ‘Burglarious intent can reasonably be inferred from an
unlawful entry alone.’ ” (People v. Martin (1969) 275 Cal.App.2d 334, 339; see People
v. Jones (1962) 211 Cal.App.2d 63, 71-72 [“Burglarious entry may be inferred from the
fact that appellant unlawfully and forcibly entered the home of another”]; People v. Fitch
(1946) 73 Cal.App.2d 825, 827 [intent to commit theft “could be inferred from the
forcible and unlawful entry alone”].)
That the facts might also suggest defendant actually intended to sleep in the home,
not steal from it, does not alter the analysis, because we must affirm the judgment if the
circumstances reasonably justify the jury’s finding of guilt even if we believe the
circumstances might also reasonably be reconciled with a contrary finding. (People v.
Thomas (1992) 2 Cal.4th 489, 514.)
Accordingly, defendant’s unlawful entry here warranted a conclusion that he
intended to steal from the homeowner. That is sufficient evidence to support the burglary
conviction.
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II
People v. Dueñas
Invoking People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the trial
court violated constitutional principles by imposing costs despite finding an inability to
pay, and without holding a hearing to determine defendant’s ability to pay. He argues the
costs imposed should be “vacated or stayed unless and until the prosecution proves
[defendant] has the present ability to pay.”
The People argue defendant has forfeited on appeal this argument, because he did
not object to the trial court’s imposition of costs. Defendant responds that we “may . . .
consider the issue under a claim of ineffective assistance of counsel.”
We need not resolve the questions of forfeiture and effective assistance of counsel,
because we conclude this claim lacks merit.
Defendant’s claim hinges on the Dueñas analysis finding due process principles
mandate an ability to pay hearing before imposing fines and fees. We are not persuaded
this analysis is correct. Our Supreme Court is now poised to resolve this question, having
granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that
due process requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s ability to pay before it imposes court facilities and court operations
assessments under section 1465.8 and Government Code section 70373, but not
restitution fines under section 1202.4. (Kopp, at pp. 95-96, review granted.)
In the meantime, we join several other courts in concluding that the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and fees at issue in Dueñas and in this proceeding. (People v. Cota
(2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272,
279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019,
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S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019)
39 Cal.App.5th 917, 928.)
III
The Abstract of Judgment
The abstract of judgment does not list the section 667.5(c)(21) enhancement found
true by the jury. We shall direct the clerk of the trial court to prepare an amended
abstract of judgment listing the enhancement. (People v. Mitchell (2001) 26 Cal.4th 181,
185 [appellate courts may correct errors and omissions in abstracts of judgment at any
time].)
DISPOSITION
The judgment is affirmed. The clerk of the trial court shall prepare an amended
abstract of judgment listing the section 667.5(c)(21) enhancement and forward a copy of
the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
HULL, Acting P. J.
I concur:
MURRAY, J.
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ROBIE, J.
I concur fully in part I of the Discussion but write separately regarding part II,
which addresses defendant Nicholaus Alexander Sabala’s ability-to-pay argument.
Defendant believes Dueñas calls into question the trial court’s imposition of mandatory
fines and fees without first determining his ability to pay. (People v. Dueñas (2019) 30
Cal.App.5th 1157.) I disagree with the majority’s conclusion that Dueñas was wrongly
decided but concur in the result because defendant forfeited the argument by failing to
raise it in the trial court during the sentencing hearing. Dueñas was decided on January
8, 2019; defendant’s sentencing hearing was held in October 2019. Counsel is presumed
to know applicable law. (See People v. Barrett (2012) 54 Cal.4th 1081, 1105.) I decline
to consider defendant’s conclusory alternative argument that his trial counsel was
ineffective for failing to raise the objection.
To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.) On direct appeal, a judgment will be reversed for
ineffective assistance “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.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (Ibid.) Defendant fails to meet his burden to demonstrate counsel
had no tactical purpose for failing to object. Defendant, in essence, asks the court to
presume that every homeless individual will automatically be found not to have the
ability to pay all fines, fees, and assessments. That we cannot do.
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Because I conclude defendant forfeited the argument, I do not consider the merits.
Robie, J.
2