THE PEOPLE, Plaintiff and Respondent, v. GABRIEL ANTONIO MARTINEZ, Defendant and Appellant.
No. H039398
Sixth Dist.
June 6, 2014
226 Cal. App. 4th 1169
COUNSEL
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon and Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.
ELIA, J.-By way of an information filed on December 20, 2011, the Monterey County District Attorney charged Gabriel Antonio Martinez (appellant) with one count of murder (
Before trial, appellant waived his right to a jury trial in return for the prosecution‘s agreement to dismiss count onе (murder) and a stipulated sentence of no more than 11 years eight months in state prison if the court found him guilty;2 the parties agreed that appellant could be sentenced on only one of the GBI enhancements since the two counts to which the GBI enhancements attached related to one victim. Appellant agreed to waive his
On January 25, 2013, the court found appellant guilty of involuntary manslaughter and three counts of furnishing a controlled substance; the court found true the GBI enhancement attached to two of the furnishing counts--counts three and four. On February 26, 2013, the court sentenced appellant to a prison term of 11 years eight months-the upper term of five years on count three (furnishing methadone to Ms. Groveman), with three years for the GBI enhancement, рlus consecutive terms of one year four months for counts four and five (furnishing hydrocodone to Ms. Groveman and methadone to Lejla Mavris) and a consecutive one-year term for count two (manslaughter). The court imposed various fines and fees including, as relevant to this appeal, a $12,320 restitution fund fine imposed pursuant to
Appellant filed a timely notice of appeal.
Facts and Proceedings Below
In accordance with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103].)
At approximately 11:12 a.m. on June 10, 2011, Officer Shaumbe Wright was sitting in his patrol car when appellant approached him. Appellant told Officer Wright that he thought “this girl over there is dead. Somebody needs to check.” Appellant explained to Officer Wright that he did not know the girl; however, he went on to say that he and the girl had “gone out last night” and even though he was married they “hooked up.” When Officer Wright asked how he knew the girl was dead, appellant said he found “stuff” oozing out of her mouth.
After appellant indicated which apartment the girl was in, Officer Wright knocked on the door, but there was no answer. The door was unlocked; when Officer Wright called inside no one answered. The officer entered the apartment and went to the bedroom wherе he saw a woman, later identified as Lisa Groveman, lying on her right side with her eyes open. She had some discoloration in her right jaw area and appeared to the officer to be deceased; Officer Wright could not find a pulse. According to Officer Wright, Ms. Groveman‘s body felt stiff and her lips were a “different” color. The officer did not see any fluid flowing from her mouth. When paramedics arrived and checked Ms. Groveman‘s condition, they pronounced her dead.
At the scene, Officer Wright asked appellant if he would be willing to answer some questions and appellant responded that he was willing so to do. One of the questions that Officer Wright asked was if appellant had seen Ms. Groveman take any pills. Appellant said that he had seen her take pills at the restaurant where they met; this was before they came to the apartment. Appellant said that the pills were white and that he had given them to
Appellant told Officer Wright that after intercourse, he and Ms. Groveman were sleeping and he noticed Ms. Groveman was “acting weird.” He tried to wake Ms. Groveman, but she was “kind of groggy.” Appellant said that he left the apartment at 8:00 a.m. He telephoned Ms. Groveman, but she did not answer her telephone. He returned to the apartment at 11:03 a.m. and knocked on the door. However, Ms. Groveman did not answer the door so he left; appellant explained that when he saw Officer Wright sitting in his patrol car he went back to the apartment. When he returned he opened the apartment door and went in. Appellant said he found Ms. Groveman on the bed, but he could not find a pulse; that is when he notified Officer Wright that possibly Ms. Groveman was dead.
After Ms. Groveman‘s body was discovered Detective Newby interviewed Lejla Mavris.3 Ms. Mavris said that she met her friend Lisa Groveman at Lallapalooza on June 9, 2011. Appellant approached the bar and began talking to them. When Ms. Mavris asked appellant if he was in the military, he responded that he was in “pharmaceuticals.” Ms. Groveman asked appellant what kind of pharmaceuticals and appellant responded “methadone.” Ms. Groveman expressed interest in getting methadone and appellant left to get some. Ms. Groveman and Ms. Mavris decided to leave Lallapalooza and go to another bar, Cibo‘s. Appellant met them there. Appellant took some pills from his pocket and gave them to Ms. Groveman. Ms. Mavris saw Ms. Groveman ingest three pills. Ms. Mavris said that Ms. Groveman offered her some pills, but shе refused because she was not sure what it was that appellant was giving them. A few moments later, Ms. Groveman ingested two more pills, and the two additional pills that Ms. Groveman had tried to give to Ms. Mavris. Ms. Mavris said that Ms. Groveman took a total of seven pills, which Ms. Mavris thought were methadone; Ms. Mavris did not see appellant take any pills. Ms. Mavris tried to persuade Ms. Groveman to leave Cibo‘s, but Ms. Groveman refused to go and told Ms. Mavris not to judge her. Ms. Mavris left Cibo‘s with a friend-Ryan. Ryan offered to drive
Ryan Lama testified that he and another friend met Ms. Mavris and Ms. Groveman at Lallapalooza. Mr. Lama was close friends with Ms. Mavris; he met Ms. Groveman for the first time that evening. Mr. Lama said that the women finished three bottles of wine and possibly had a couple more drinks. They were happy and having a good time. By the end of the evening Ms. Groveman was intoxiсated. Appellant started talking to Ms. Mavris and Ms. Groveman; Mr. Lama thought that appellant was intoxicated. After a couple of hours the group moved to Cibo‘s. They had another round of drinks there. Appellant and Ms. Groveman were talking, but although Mr. Lama could not hear what they were saying, he saw them passing drugs. Specifically, Mr. Lama said that he saw Ms. Groveman get some white pills from appellant and he thought that Ms. Groveman tried to give some to Ms. Mavris. Ms. Groveman put some pills in her mouth, possibly two pills. Mr. Lama decided to leave Cibo‘s at around 1:30 a.m. and offered to drive Ms. Groveman home, but she said she wished to remain and told Mr. Lama not to judge her. Mr. Lama testified that he was concerned the two women had had too much to drink. Mr. Lama left Cibo‘s with Ms. Mavris.
Peter Inzerillo, the bouncer at The Britannia Arms, testified that at one point Ms. Groveman tried to get into his bar, but because she appeared intoxicated he refused to let her in. He told Ms. Groveman that she had had enough to drink. Ms. Groveman told Mr. Inzerillo that she was only going with appellant because he had Vicodin. Mr. Inzerillo saw Ms. Groveman walk down the street with appellant; they were kissing and being affectionate.
The June 9, 2011 video surveillance footage from Cibo‘s was played for the court. The video showed appellant talking to Ms. Groveman and Ms. Mavris at the bar. At 12:10 a.m. appellant reached into his pocket and pulled something out. A few moments later Ms. Groveman ingested the something. Later, at approximately 31 minutes after midnight, Ms. Mavris and Ms. Groveman can be seen joining appellant who put his hand into his pocket and appeared to remove something. Ms. Groveman appeared to look down at the something then appeared to put the something in her mouth. Subsequently, Ms. Groveman and Ms. Mavris appear to be discussing something, Ms. Mavris shakes her head; it appeared she handed something back to Ms. Groveman, who then placed something in her mouth again. Appellant was observing what was tаking place between Ms. Groveman and
A videotape of appellant‘s two police interviews was played for the court. During the interviews, appellant told the police that he works for a company that returns expired drugs from pharmacies back to the manufacturer. He packages the drugs for shipment to the manufacturers. On June 9, 2011, he was in Monterey for work and was staying at a hotel.
Appellant explained that he went to Lallapalooza and saw Ms. Groveman with her friend. He went up to them and started talking. He and Ms. Groveman exchanged telephone numbers. They met up at Cibo‘s at approximately 12:15 a.m. Appellant said he had two drinks. Sometime after 1:00 a.m. appellant offered to take Ms. Groveman home-he felt he ought to drive because he had had only a couple of drinks, and so he drove Ms. Groveman‘s car to her apartment. Appellant admitted that he saw Ms. Groveman have several drinks over the course of the night; he could not estimate how many. At Ms. Groveman‘s apartment, they had sexual intercourse. Afterwards they were lying in bed and Ms. Groveman was mumbling and rambling; she was not making much sense. While she was sleeping she was making snorting sounds and breathing irregularly. Appellant said he tried to wake her, but she did not want to be bothered. He thought about calling 911, but she seemed to still be responsive and breathing on her own. At approximately 8:00 a.m. he told Ms. Groveman he was leaving and that he would telephone her. Earlier, he had dressed Ms. Groveman in her black top and pants. Ms. Groveman mumbled as he was leaving. She was drooling and perspiring. Appellant said that he placed her telephone next to her so she would hear it ring.
Appellant told the police that he went back to his hotel room and slept for a little while. At 10:30 a.m. he decided to go back to Ms. Groveman‘s apartment because he had tried telephoning her; he had left a voicemail. When he reached her apartment, he saw a police officer parked nearby. Appellant explained that he knocked on the door of Ms. Groveman‘s apartment, but after there was no response, he left. As he drove down the street he saw the officer again; he decided to turn around because of “intuition“-“something just didn‘t feel right.” Appellant said that he knocked on the door of the apartment again, but then remembered that the door had been left unlocked. He walked in and saw Ms. Groveman lying on her back and side; her lips were purple. “Stuff” was coming out of her mouth. He tried to feel for her pulse.
Appellant told the police that Ms. Groveman had been drinking at the bars, that she asked him what he did for a living and if he had any drugs. When he left Lallapalooza he went to get drugs. Appellant admitted giving
The police asked appellant about a small white towel that was found on Ms. Groveman‘s bed. Appellant explained that he had put the towel there to wipe Ms. Groveman‘s drool while she was sleeping; earlier he had used the towel to wipe himself after they had intercourse. When asked about a stain that was on the bottom bedsheet, appellant said that it could have come from Ms. Groveman‘s bodily fluids during intercourse. Appellant said that he was “slightly” concerned about the effect the methadone had had on Ms. Groveman, but said she had been acting normally during the evening. Appellant told the police that he did not havе any more methadone. He said he was aware that methadone is a depressant that suppresses the central nervous system, respiration and the heart rate. Further, he admitted knowing that methadone combined with alcohol was more powerful than it would be alone.
Subsequently, appellant told the police that possibly there were some more pills in the dresser drawer in his room. Pursuant to a search warrant, officers searched appellant‘s hotel room and located a number of pills in a small bag inside a rolled-up sock. In all, the police located 21 methadone hydrochloride pills, two hydrocodone and acetaminophen pills (Vicodin) and one methadone pill from a different manufacturer. Appellant‘s cellular telephone showed that he had texted Ms. Groveman at midnight and she asked him to come to Cibo‘s. In addition, the telephone showed that appellant had telephoned Ms. Groveman at 8:55 a.m. the next morning; the call lasted 21 seconds.5
Soon after Ms. Groveman‘s body was found, Sergeant William Clark arrived at the apartment. He photographed the scene. Ms. Groveman‘s body was on her bed with her cellular telephone a few inches from her face. She was wearing a black tank top and tight black pants with no undergarments. Behind her body, in the corner of the bed, was a pillow with a white towel lying against it. There was a faint circular stain near the pillow and towel area. Behind Ms. Groveman‘s back there was a stain on the bedsheet, orange colored, faint and uneven; the stain was located in front of the pillow and towel. All the stains were dry. The stain on the bedsheet could not be dated and was not tested. A photograph taken by Sergeant Clark showed a small amount of foam or “purge” on the inner portion of Ms. Groveman‘s mouth; and
Forensic pathologist Dr. John Hain performed Ms. Groveman‘s autopsy. He testified that Ms. Groveman‘s lungs were heavy from accumulated fluid and there was some foam in her airway; her bladder was extremely distended. He said this was typical in a victim who had overdosed on sedatives. Ms. Groveman‘s toxicology results showed a high level of methadone and hydrocodone and a moderate level of alcohol.
Dr. Hain stated that with a sedative overdose the victim‘s breathing decreases and the oxygen level in the blood starts to decrease; this has an effect on multiple organs. In particular, the lungs start to leak fluid and this causes pulmonary edema, which is fluid buildup in the lungs. Dr. Hain explained that as the fluid builds it tends to leak out of the airway, usually as foam; the foam has protеins in it. Ms. Groveman had small bubbles of “pernicious fluid” in her airways. People who have overdosed have a propensity to vomit and aspirate stomach contents; when this happens there is an irritant effect in the lungs and they respond by pouring out more fluid. Dr. Hain saw evidence of both these causes of edema in Ms. Groveman; there were food particles in the large airways and residual food in her stomach.
Based on Ms. Groveman‘s blood toxicology results, Dr. Hain concluded that Ms. Groveman had drunk alcohol a number of hours before she died. The level of methadone in her system was 0.38 milligrams per liter, which was in the fatal range for a nontolerant user.6 The level of hydrocodone was 0.08 milligrams per liter, a level that was especially elevated for someone who did not have tolerance for the drug. The hydrocodone itself was not fatal but in combination with the other drugs and alcohol could be lethal. Dr. Hain concluded that the cause of death was methadоne, hydrocodone and alcohol intoxication. He could not estimate an exact time of death, but indicated that based on the signs of rigor mortis, Ms. Groveman died sometime between 5:00 a.m. and 8:00 a.m. He opined that by 8:00 a.m. Ms. Groveman was either dead or deeply unconscious and close to death. As to the quantity of pills that Ms. Groveman ingested, based on the level of the drugs in her blood Dr. Hain indicated that Ms. Groveman ingested six or seven 10-milligram methadone pills and six to eight 10-milligram hydrocodone pills.
Dr. Hain opined that if emergency personnel had been summoned when Ms. Groveman was having trouble breathing, she could have been saved, even if she was experiencing pulmonary edema. Further, he stated that the towel that was found close to Ms. Groveman‘s pillow had stains that were consistent with fluid from the lungs; the stain was similar in color to the stain on the bedsheet, but he could not be absolutely certain of the source of the stain.
Discussion
GBI Enhancement
Appellant contends that the GBI enhancements must be reversed because the trial court had no authority to impose them; alternatively, there was insufficient evidence to support them.
Background
At the time appellant waived his
Defense counsel stated that it was his belief “as a matter of law ... that if one were convicted of involuntary manslaughter and furnishing and the victim was exactly the same, you ... couldn‘t add on the enhancement. You certainly could convict him of both of the substantive crimes, but as a matter of law you couldn‘t add on the enhancement. . . . [I]f the victim of the furnishing-in other words, the receiver, the furnishee is the same person who dies as a result of in this case a drug overdose, that in that case ... the GBI could not apply.”
During trial, defense counsel continued to challenge the legality of the GBI enhancements; counsel argued that as a matter of law they could not be imposed where there is a manslaughter conviction. Specifically, counsel argued that there was no authority for adding a GBI enhancement to a charge of furnishing narcotics or dangerous drugs to a victim who overdoses and thereаfter dies.
After considering the trial briefs and argument by counsel on the GBI issue, the trial court concluded that it could legally impose a GBI enhancement on the furnishing charge. The court based its conclusion on the language of
Appellant contends that the court had no authority to impose the GBI enhancements since the enhancements were premised on Ms. Groveman‘s death and appellant had already been convicted of manslaughter as a result of the death.
As relevant to this issue,
The question presented involves statutory interpretation, which presents a question of law subject to de novo review. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 76-77 [115 Cal.Rptr.2d 3].) First, we look to the words of the statute, giving them their usual and ordinary meaning. (People v. Garcia (2002) 28 Cal.4th 1166, 1172 [124 Cal.Rptr.2d 464, 52 P.3d 648].) If the language of the statute is susceptible to more than one reasonable construction, we can look to the legislative history to aid in ascertaining the legislative intent. (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055 [80 Cal.Rptr.2d 828, 968 P.2d 539].) However, when statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. (People v. Weidert (1985) 39 Cal.3d 836, 843 [218 Cal.Rptr. 57, 705 P.2d 380].)
“‘A plain reading of
Appellant‘s contention that regardless of which offense the GBI enhancement attaches, the enhancement cannot apply to a homicide victim where a defendant is convicted of murder or manslaughter, reads subdivision (g) of
To support his position, appellant relies on People v. Verlinde (2002) 100 Cal.App.4th 1146 [123 Cal.Rptr.2d 322] (Verlinde). Appellant‘s reliance on
Two cases, People v. Brown (2001) 91 Cal.App.4th 256 [109 Cal.Rptr.2d 879] (Brown) and People v. Corban (2006) 138 Cal.App.4th 1111 [42 Cal.Rptr.3d 184] (Corban), persuade us that our interpretation of
In Brown, supra, 91 Cal.App.4th 256, a man met the defendant in San Diego, where they discussed the amputation of the man‘s leg. The defendant agreed to perform the amputation at a clinic in Mexico, which he did. The defendant was not licensed to practice medicine in either California or Mexico. After the amputation the man returned to California, where he died two days later. (Id. at pp. 260-261.) The defendant was convicted of second degree murder and the unlawful practice of medicine. As to the unlawful practice of medicine count, the jury found true the allegation that appellant inflicted GBI on a person 70 years of age or older within the meaning of
Notwithstanding the fact that the defendant in Brown had been convictеd of murder of the same victim, the Fourth District Court of Appeal concluded that the GBI enhancement under
Similarly, in Corban, supra, 138 Cal.App.4th 1111, the First District Court of Appeal upheld a GBI enhancement that was attached to a child endangerment charge where the defendant was convicted of the involuntary manslaughter of the same child. (Id. at p. 1120.) In Corban, the defendant left her two-year-old son, Liam, in a locked car with the windows closed on a hot day; he died from heat exposure. Defendant pleaded no contest to involuntary manslaughter and felony child endangerment (
On appeal, the defendant in Corban contended that she could not lawfully be charged with a
The fact that neither Brown nor Corban addressed the exact issue that appellаnt raises here is of no moment. Where murder and manslaughter are concerned, the subdivision exempting murder and manslaughter from the reach of
In sum, appellant‘s interpretation of
Appellant‘s argument that there was insufficient evidence that he “personally inflicted” great bodily harm on Ms. Groveman is not well taken.
In reviewing a claim of insufficiency of the evidence on appeal, “‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].) Furthermore, when we review the evidence in the light most favorable to respondent, we “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649].)
“[T]he meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase ‘personally inflicts’ means that someone ‘in person’ [citation], that is, directly and not through an intermediary, ‘cause[s] something (damaging or painful) to be endured’ [citation].” (People v. Cross, supra, 45 Cal.4th at p. 68.)
Certainly, “for the [GBI] enhancement to apply, the defendant must be the direct, rather than proximate, cause of the victim‘s injuries.” ( People v. Warwick (2010) 182 Cal.App.4th 788, 793 [106 Cal.Rptr.3d 133].) As the
court in People v. Rodriguez (1999) 69 Cal.App.4th 341 [81 Cal.Rptr.2d 567] noted, “[t]o ‘personally inflict’ injury, the actor must do more than take some direct action which proximately causes injury.” (Id. at p. 349.)
Appellant concedes that the combination of drugs caused Ms. Grоveman‘s death; he admits that Dr. Hain‘s testimony established that the amount of methadone was in the lethal range and that the level of hydrocodone, when combined with the amount of methadone, was also in the lethal range. Appellant argues however, that “the relevant question is whether his act of furnishing methadone and Vicodin-as opposed to Ms. Groveman‘s act of volitionally ingesting the drugs-directly caused her death.”
Appellant argues that the decision in People v. Rodriguez, supra, 69 Cal.App.4th 341 (Rodriguez) is most helpful to his position.
In Rodriguez, the defendant “was being transported with other prisoners from a police station to a jail. He escaped custody and began running away, instigating a chase by Officer Martin. At one point during Martin‘s pursuit of Rodriguez, a bystander handed Rodriguez a bicycle to aid in his escape. Martin tackled Rodriguez on the bicycle and both men fell to the ground. Martin testified that during the tackle he hit his head, either on the ground, the concrete sidewalk, or the lamppost, and was knocked unconscious.” (Rodriguez, supra, 69 Cal.App.4th at p. 346.) The Rodriguez court reversed a GBI finding because “in this case Rodriguez did not initiate a struggle or any other physical contact with the officer. Nor can we find evidence in this record of any act by Rodriguez that directly caused the officer injury.” (Id. at p. 351.) “[A]lthough the record contains evidence Rodriguez proximately caused the officer‘s injury, we conclude that, as a matter of law, this record does not establish that Rodriguez directly inflicted the injury. According to the record, Rodriguez did not push, struggle or initiate any contact with the officer. . . . Instead, the evidence shows that Rodriguez was trying to escape arrest on a bicycle and the officer injured himself when he tackled Rodriguez.” (Id. at p. 352.) We are not persuaded that Rodriguez adds anything to appellant‘s argument. In contrast to this case, in Rodriguez, there was no evidence the defendant had personally acted to cause the injuries to the victim.
Simply put, appellant‘s argument that the enhancement is inapplicable because Ms. Groveman made a volitional choice that directly caused her death is unavailing. More than one person may be found to hаve directly participated in inflicting a single injury. For example, in People v. Dominick (1986) 182 Cal.App.3d 1174, 1210-1211 [227 Cal.Rptr. 849], the defendant who held the victim while a codefendant struck her was found directly
Appellant may not have forced Ms. Groveman to take a lethal quantity of drugs, but he supplied her with them knowing that the drugs were more dangerous when combined with alcohol. Appellant continued to supply drugs to Ms. Groveman as he watched her continue to consume alcohol and become intoxicated, so intoxicated that appellant felt she was not in any condition to drive and he drove her car to her apartment. Appellant‘s act of personally providing Ms. Groveman a lethal quantity of drugs while she was in an intoxicated state was the direct cause of Ms. Groveman‘s death. As the trial court found, “Ms. Groveman would not have died had Mr. Martinez not provided her with all the drugs that he had that night.”
In sum, there was substantial evidence that appellant personally inflicted GBI on Ms. Groveman.
Alleged Insufficient Evidence to Support Count Five
Appellant contends that his conviction on count five, furnishing the methadone to Lejla Mavris, must be reversed because there was insufficient evidence as his conviction was based solely on his statement to the police withоut independent proof of the corpus delicti of the offense.
We reiterate, “[i]n assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
Appellant argues that the corpus delicti of the alleged crime was not established independent of his extrajudicial statements. Appellant asserts that in finding him guilty on count five, the court “largely relied” on his admission that he provided the methadone to Ms. Mavris.
Certainly, “[i]n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 [119 Cal.Rptr.2d 903, 46 P.3d 372].) “Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citation.]” (Id. at p. 1169.)
Nevertheless, as to independent proof, “the quantum of evidence required is not great, and ‘need only be “a slight or prima facie showing” permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant‘s statements may be considered to strengthen the case on all issues.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 722 [47 Cal.Rptr.3d 326, 140 P.3d 657].) “‘The inference [that a crime has been committed] need not be “the only, or even the most compelling, one . . . [but need only be] a reasonable one.” [Citation.]” (Ibid.) We agree with the People that here there was circumstantial evidencе of the furnishing offense independent of appellant‘s statement to the police.
According to Ms. Mavris‘s statement to the police, when she first met appellant he said that he was in “pharmaceuticals“; and after Ms. Groveman asked appellant what kind, he said methadone. Then, after Ms. Groveman asked appellant if he could get some methadone, appellant left the bar. Later, at Cibo‘s, appellant gave the methadone to Ms. Groveman and Ms. Groveman tried to give Ms. Mavris some of the methadone pills. Ms. Mavris said she refused to take the pills because she had no idea what appellant had given Ms. Groveman. Ms. Mavris was under the impression that appellant had given Ms. Groveman the methadone to give to her.12
Ryan Lama testified that when they were all at Cibo‘s he saw appellant and Ms. Groveman talking and saw appellant pass drugs to Ms. Groveman and then Ms. Groveman may have passed drugs to Ms. Mavris.
We can reasonably infer from all this evidence that appellant supplied a controlled substance to Ms. Mavris in violation of
The quantum of independent evidence was sufficient to provide the independent corroboration needed to support the conviction on count five.
Restitution Fund Fine
At sentencing, the court ordered a restitution fine “in the amount of $280 times the number of years, times the number of felony counts, for a total restitution fine in the amount of $12,320.” The probation officer‘s report recommended that appellant “be required to pay a restitution fine of $280.00 times the number of years, times the number of felony counts, for a total restitution fine of $12,320.00 (
Appellant challenges the amount of the restitution fund fine on the ground that his offenses were committed in June 2011 and the court improperly used the fоrmula that came in to effect on January 2013. He argues that when he committed his crimes the minimum restitution fine was $200.
At the outset, we note that the record supports the inference that the court intended to use the formula in
Effective January 1, 2013, the minimum restitution fine in
The prohibition against ex post facto laws applies to rеstitution fines. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 [92 Cal.Rptr.3d 13]; People v. Souza (2012) 54 Cal.4th 90, 143 [141 Cal.Rptr.3d 419, 277 P.3d 118] [it is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions].) Nevertheless, the rule of forfeiture is applicable to ex post facto claims (see People v. White (1997) 55 Cal.App.4th 914, 917 [64 Cal.Rptr.2d 245]), particularly where any error could easily have been corrected if the issue had been raised at the sentencing hearing.
Nevertheless, appellant argues that his trial counsel rendered ineffective assistance by failing to object to the incorrect minimum amount used to calculate the final total. Respondent concedes that the fine must be reduced.
To prevail on an ineffective assistance of counsel claim, appellant must prove two elements: (1) trial counsel‘s deficient performance and (2) prejudice as a result of that performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland).)
Deficient performance is established if the record dеmonstrates that counsel‘s representation “fell below an objective standard of reasonableness under
Normally, “the failure to object is a matter of trial tactics that an appellate court will seldom second-guess [citation]. . . .” (People v. Carter (2003) 30 Cal.4th 1166, 1209 [135 Cal.Rptr.2d 553, 70 P.3d 981].) However, an exception exists where “there simply could be no satisfactory explanation” for counsel‘s failure to object. (Id. at p. 1211.) Furthermore, with respect to unfavorable sentencing issues, “a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 351 [36 Cal.Rptr.2d 627, 885 P.2d 1040]; see People v. Le (2006) 136 Cal.App.4th 925, 936 [39 Cal.Rptr.3d 146] [finding ineffective assistance of counsel where counsel failed to object to a fine calculation in which the court added counts where a punishment should have been stayed pursuant to
Here, trial counsel failed to object to the trial court‘s mistaken use of the minimum statutory fine that was in effect at sentencing to calculate appellant‘s restitution fund fine. We cannot conceive of any tactical reason for counsel‘s failure to object. On the record before us, given the court‘s commitment to use the statutory formula in
As a result, we will use the statutory formula to reduce the restitution fund fine to $8,800-$200 multiplied by 11 (the number of years of imprisonment) multiplied by four (the number of felony counts). Since the parole revocation fine the court imposed must be the same amount as the restitution fund fine, we will order that the parole revocation fine be set at $8,800. (
Disposition
The judgment is modified to reflect the imposition of a restitution fund fine in the amount of $8,800 and a parole revocation fine in the same amount.15 As so modified, the judgment is affirmed.
Rushing, P. J., and Premo, J., concurred.
A petition for a rehearing was denied June 24, 2014, and appellant‘s petition for review by the Supreme Court was denied September 17, 2014, S219888. Werdegar, J., did not participate therein.