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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055586

v.                                                                       (Super.Ct.No. INF10000289)

LEE DERRICK BROWN,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside 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.




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                                      INTRODUCTION

       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 criminal

behavior. In February 2010, he was on parole and living 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


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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. Code1 § 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.2 (§ 667, subds. (c) & (e)(1) and 1170.12, subd. (c)(1).

       On September 13, 2010, defendant’s lawyer, Joshua Mulligan (“Mulligan”),

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 psychological

evaluation. The deputy district attorney, Brad Braaten, did not object to the request, but

       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2   The carjacking appears to have been committed in 1996, when defendant was
16.


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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.”

         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.


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       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

       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




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of $10,000, and a parole revocation fine pursuant to section 1202.45, suspended unless

parole is revoked.3

       The Statement in Mitigation

       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.”

       First Sentencing Hearing

       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.” 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.




       3The $50 victim restitution fine was for damage to the curtains of a neighbor’s
window that defendant also, allegedly, broke. The landlord of the building had paid for
the window repairs.


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          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.

          Second Sentencing Hearing

          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.


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       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[].”

       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.” 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.”

       Defense Counsel Mulligan did not object to any of the fines or fees.

                                        DISCUSSION

       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.




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       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 Strickland v. Washington (1984) 466 U.S. 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.




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       Standard of Review

       A trial court has broad discretion to determine the amount of restitution fine to

impose, within the statutory range. (People v. Urbano (2005) 128 Cal.App.4th 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. (People v. Aubrey (1998) 65

Cal.App.4th 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 set at the discretion of the court and commensurate with the

seriousness of 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


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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


                                             11
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.




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       Finally, it appears from our review of the record that in the lengthy, complicated,

and occasionally hostile4 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).)

                                       DISPOSITION

       The matter is remanded for the trial court to exercise its discretion regarding




       4  The relationship between defense counsel and the prosecutor seems to have
been even less cordial than usual, as one sought a restrictive mental health placement
while the other pushed for a prison sentence. See, for example, defense counsel’s
statement: “I told the prosecutor’s office that they could file for a [Welfare and
Institutions Code section] 6500 commitment. This met with a shrug. The prosecutor
expressed to me some satisfaction that now Mr. Brown has multiple strikes and they can
strike him out when he re-offends. This is an extremely crude way to deal with this
situation . . . .” And, “The prosecution’s resistance to mental health solutions in this case
is a brain-dead approach that only works contrary to public safety.” At the end of
sentencing, when the prosecutor refused to dismiss a trailing misdemeanor, defense
counsel promptly set the matter for jury trial causing the court to comment, in an apparent
attempt to pour oil on troubled waters, “I’m confident that this matter will be resolved. I
want to give the district attorney’s office the opportunity, in light of all that’s transpired
with regard to the sentencing, to do the appropriate thing.”


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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.




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