Filed 8/14/20 P. v. Silva 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                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                 DIVISION ONE

                                         STATE OF CALIFORNIA


THE PEOPLE,                                                          D075409

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCD276453)

JOSEPH SILVA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,
Joseph P. Brannigan, Judge. Reversed in part, affirmed in part.
         Marianne Harguindeguy, 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, Daniel
Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
                                       I
                              INTRODUCTION
      A jury convicted Joseph Silva of attempted murder (Pen. Code, §§ 664

and 187, subd. (a); count 1);1 discharging a firearm at an occupied vehicle
(§ 246; count 2); child abuse or endangerment (§ 273a, subd. (a); count 3);
unlawful possession of a firearm as a convicted felon (§ 29800, subd. (a)(1);
count 5); and possessing methamphetamine for the purpose of sales (Health
and Saf. Code, § 11378; count 6). The jury also found true allegations he
personally used a shotgun in connection with count 1 (§ 12022.5, subd. (a))
and was personally armed with a firearm in connection with count 6
(§ 12022, subd. (c)). The court sentenced Silva to 19 years in state prison and
imposed various fines and fees.
      Silva contends on appeal: (1) there was insufficient evidence of intent to
kill to support the verdict for attempted murder, (2) the court erred in
denying a motion to suppress evidence found in Silva’s house because either
his consent was not free and voluntary or the search exceeded the scope of
consent, and (3) the court violated his constitutional rights by imposing fines
and fees without determining Silva’s ability to pay. We conclude there is no
merit to the first contention. The People concede that the scope of the search
exceeded the consent given and that conviction for count 6 should be
reversed. We conclude Silva forfeited the third contention, but even
exercising our discretion to consider the issue, we conclude remand is not
necessary in this case. Accordingly, we reverse the judgment of conviction as
to count 6 and the associated firearm allegation and vacate the sentence as to
count 6 only. In all other respects, we affirm the judgment.
                                       II

1     Statutory references are to the Penal Code unless otherwise stated.

                                       2
                                 BACKGROUND
      A tow-truck driver was sent to repossess a vehicle from Silva. The
property was located on a long private drive off a public road. An individual
opened a gate to the property and confirmed Silva lived there. The tow-truck
driver located and began securing the vehicle. The driver encountered a
young child who asked what he was doing. When the driver said he needed
to talk to the child’s parents, the child ran off.
      A woman approached the driver in an aggressive manner. Silva, who
was carrying a shotgun, followed and asked in an aggressive manner what
the driver was doing. The driver identified himself as a repossession agent
and said he was there to pick up the vehicle for the bank. The driver said,
“No one needs to get hurt over a vehicle.”
      When Silva and the woman began trying to take the straps off the
wheels of the vehicle he was there to repossess, the driver took the
opportunity to try to leave a dangerous situation. He got into the tow truck
and tried to leave.
      When Silva realized the driver was leaving, Silva walked down the
passenger side of the tow truck and pointed the barrel of the shotgun through
the open passenger window. The driver thought Silva was trying to shoot
him based on Silva’s aggressive demeanor and statements.
      The driver shouted, “Hey!” to startle Silva long enough to get the tow
truck rolling. As the truck began to roll, the driver heard the shotgun go off.
He heard and felt the vibration of bullets hitting the cab of the tow truck.
Three bullets penetrated the cab of the tow truck, including one that dented a
computer behind the seatback on the passenger side.
      The driver called 911 as he drove toward the gate and reported Silva
fired a shotgun at him. A vehicle followed the tow-truck driver out of the


                                         3
gate and blocked the driveway. Silva got out of the other vehicle and yelled
at the driver to let down his vehicle. Silva got into the vehicle being towed
and tried to drive it off the tow truck. When he was unsuccessful, Silva again
tried to cut the straps with a knife to release the towed vehicle. Silva also
tried to open the door to the cab of the tow truck, but it was locked.
      Sheriff’s deputies responded to the 911 call. The first responding
deputy observed the driver in the cab of the tow truck, which was blocked by
another vehicle. The deputy heard the truck on the back of the tow truck
moving as though someone was trying to drive it off the tow truck. When the
deputy contacted Silva, she ordered him to get down on the ground at
gunpoint until another deputy arrived.
      The deputies placed Silva in handcuffs and conducted a pat-down
search. They located a knife, a butane lighter, and a clear plastic baggie
containing four grams of methamphetamine on Silva. Silva denied shooting
at anyone and said he did not have a gun or access to a gun.
      Deputies searched the home. There was one bedroom and a makeshift
bed surrounded by toys for a child in the living area. In the bedroom,
deputies found a table and chair placed in a closet without a door. The table
was set up with needles that appeared to contain heroin along with tie-offs.
Next to the table, on or in a cardboard box, they found a black bag with a pill
bottle sticking out. The bag contained syringes, a glass pipe, and a large
spoon with white residue. In a second zippered bag, they found a pill case
with the word “Norco” written on it. The bag contained a crystalline
substance and more syringes. They also found small, plastic zippered storage
baggies. The deputies impounded a bag containing 27 grams of
methamphetamine and another bag containing 0.46 grams of
methamphetamine. A detective testified the amount of methamphetamine


                                        4
located in the home and on Silva indicated he possessed it for sale rather
than for personal use.
      The deputies did not locate the shotgun in the house. After viewing
surveillance video from the tow truck showing Silva with the shotgun, Silva
directed his girlfriend to take a deputy to the shotgun. It was hidden in a
nearby shed, wrapped in a blanket. Deputies found an unspent round
jammed in the gun.
                                       III
                                 DISCUSSION
                                        A
                 Sufficiency of Evidence for Attempted Murder
      Silva contends there was no substantial evidence of specific intent to
kill to support the attempted murder conviction because Silva tried to stop
the driver from taking his truck and “passed up opportunities” to kill the
driver. We disagree.
      “ ‘ “When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.) After viewing
the evidence in the light most favorable to the prosecution, we determine
whether “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S.
307, 319.)
      “To prove the crime of attempted murder, the prosecution must
establish ‘the specific intent to kill and the commission of a direct but


                                        5
ineffectual act toward accomplishing the intended killing.’ ” (People v.
Canizales (2019) 7 Cal.5th 591, 602.) “Direct evidence of intent to kill is rare,
and ordinarily the intent to kill must be inferred from the statements and
actions of the defendant and the circumstances surrounding the crime.”
(Ibid.)
      Here, the jury rejected the defense argument that Silva did not intend
to kill the driver and only intended to intimidate or stop the driver by
shooting at the tires. Such a conclusion is supported by substantial evidence
from the driver and video from the tow truck’s surveillance cameras. Silva
obtained the shotgun after speaking briefly with the driver. He checked it for
bullets, racked it, placed his finger on the trigger, and pointed the gun at the
driver. When the driver tried to escape the situation, Silva leveled the barrel
of the shotgun through the window of the tow truck and again pointed it at
the driver, who believed Silva was going to shoot him. Moments after the
driver shouted at Silva and pulled the tow truck forward, Silva squared
himself and fired the shotgun at the cab of the truck. The shot struck and
penetrated the cab of the truck. If an onboard computer had not stopped one
of the bullets, it likely would have penetrated the seatback on the passenger
side. Deputies determined the shotgun had an unspent round jammed in the
chamber, suggesting Silva tried to shoot twice. The act of firing a weapon
toward a victim at close range in a manner that could have inflicted a mortal
wound had the bullet been on target is sufficient evidence to support an
inference of intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741
(Smith).) “[T]hat the bullet misses its mark or fails to prove lethal [is not]
dispositive.” (Id. at p. 742.) “[T]he shooter’s purposeful ‘use of a lethal
weapon with lethal force’ against the victim, if otherwise legally unexcused,
will itself give rise to an inference of intent to kill.” (Ibid.)


                                          6
      The fact Silva did not make other attempts to kill the driver does not
mean he did not intend to kill Silva when he shot the gun. “ ‘ “The fact that
the shooter may have fired only once and then abandoned his efforts out of
necessity or fear does not compel the conclusion that he lacked the animus to
kill in the first instance.” ’ ” (Smith, supra, 37 Cal.4th at p. 741.)
                                         B
                          Motion to Suppress Evidence
      Silva contends the court erred in denying his motion to suppress all
evidence found in the search of the home because either Silva did not give
consent freely and voluntarily or the search exceeded the scope of the
consent.
      “Both the federal and state Constitutions prohibit unreasonable
searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) ‘In
California, issues relating to the suppression of evidence derived from
governmental searches and seizures are reviewed under federal
constitutional standards.’ [Citation.] ‘ “[T]he ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’ ” ’ ” (People v. Ovieda (2019) 7
Cal.5th 1034, 1041.) In reviewing a decision on a motion to suppress
evidence, “we will uphold those factual findings of the trial court that are
supported by substantial evidence. The question of whether a search was
unreasonable, however, is a question of law. On that issue, we exercise
‘independent judgment.’ ” (People v. Camacho (2000) 23 Cal.4th 824, 830.)
                                         1
      We begin with the evidence presented at the hearing on the motion to
suppress and the court’s denial of the suppression motion.
      The deputy sheriff who first responded observed the tires squealing on
the vehicle on the back of the tow truck as if someone were trying to drive it


                                         7
off the tow truck. The deputy drew a gun and ordered Silva to the ground as
he walked toward the deputy. When the deputy’s partner arrived, they
placed him in handcuffs.
      As Silva remained in handcuffs, the deputies explained they wanted to
search his residence to make sure there were no other victims and to find the
shotgun he was accused of possessing. When asked if he would sign a waiver
form to consent to a search, Silva said he did not want to sign anything. The
deputies asked Silva to sign a consent form several times. Eventually, Silva
orally agreed the deputies could conduct a safety sweep of his residence and
look for the shotgun. He still refused to sign a form.
      A deputy testified he found a small amount of narcotics and drug
paraphernalia in the search. The deputy also found items evidencing Silva’s
dominion and control over the residence and toys for a child. When
questioned by the defense as to why he did “a full-blown search of the entire
residence” for the shotgun, the deputy responded, “A shotgun can be
anywhere.” The deputy confirmed he found the paraphernalia and narcotics
before the shotgun was found in a different location.
      The court made findings of fact and conclusions of law after considering
the evidence presented. The court found the deputies were credible and,
although their testimony could have been more precise, the facts were
substantially as they testified them to be. The court found Silva’s consent
was free and voluntary and concluded the People met their burden of
establishing the lawfulness of the searches and seizures and, therefore,
denied the motion to suppress.
                                       2
      Consent is an exception to the warrant requirement, but the People
bear an additional “burden of proving that the defendant’s manifestation of


                                       8
consent was the product of his free will and not a mere submission to an
express or implied assertion of authority. [Citation.] The voluntariness of
the consent is in every case ‘a question of fact to be determined in the light of
all the circumstances.’ ” (People v. James (1977) 19 Cal.3d 99, 106, fn.
omitted.) “The question of the voluntariness of the consent is to be
determined in the first instance by the trier of fact; and in that stage of the
process, ‘[t]he power to judge credibility of witnesses, resolve conflicts in
testimony, weigh evidence and draw factual inferences, is vested in the trial
court. On appeal all presumptions favor proper exercise of that power, and
the trial court’s findings—whether express or implied—must be upheld if
supported by substantial evidence.’ ” (Id at p. 107.)
      We conclude there is substantial evidence to support the trial court’s
finding that Silva’s oral consent was freely and voluntarily given. Although
Silva declined several times to sign a consent form, he ultimately consented
to a search of his residence. The court inferred the consent was given in the
context of a conversation just outside of the residence and not while he was
on the ground. The court found there was no evidence of overt force or
threats by the deputies and the officers were free to continue to ask for
consent. The fact that Silva was in handcuffs when he gave consent does not
alter our conclusion. “A ‘person’s in-custody status, even when he is
handcuffed, does not automatically vitiate his consent; this is “ ‘but one of the
factors, but not the only one, to be considered by the trial judge who sees and
hears the witnesses and is best able to pass upon the matter.’ ” ’ ” (People v.
Byers (2016) 6 Cal.App.5th 856, 864.)
                                        3
      Silva’s consent does not end the inquiry, however. “A consensual
search may not legally exceed the scope of the consent supporting it.”


                                         9
(People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) “The standard for
measuring the scope of a suspect’s consent under the Fourth Amendment is
that of ‘objective’ reasonableness–what would the typical reasonable person
have understood by the exchange between the officer and the suspect?”
(Florida v. Jimeno (1991) 500 U.S. 248, 251.)
      At oral argument, the People conceded the trial court did not make a
factual finding about whether the bag of methamphetamine was discovered
in plain view or was otherwise discovered within the scope of the consent
given. Therefore, the People concede, and we agree, it is appropriate to
reverse the conviction for count 6 and the accompanying firearm

enhancement.2
      The court imposed the maximum possible sentence for the count 1
conviction and the accompanying firearm enhancement under section
12022.5, subdivision (a), and either ran concurrently or stayed sentences for
all the remaining counts. Specifically as to count 6, the court imposed, but
ran concurrently, a three-year term. It exercised its discretion to strike the
firearm enhancement as to count 6. Under these circumstances, because
there are no sentencing choices to restructure, we may modify the sentence
on appeal by vacating the sentence for count 6 only. (§ 1260; People v.
Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Francis (2017) 16
Cal.App.5th 876, 887.)




2     We conclude the syringes found in plain sight on the table in the
bedroom were sufficient to support the child abuse conviction under section
273a, subdivision (a).

                                       10
                                         C
                                 Fines and Fees
      Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Silva contends
the court violated his due process rights by imposing fines and fees without
first determining ability to pay. Silva asks us to vacate the fines and fees or
remand the matter for determination of ability to pay. The People contend
Silva forfeited his claim by failing to raise the issue with the trial court, but,
in any event, remand is not necessary on this point. We agree with the
People.
      “At the core of the Dueñas opinion is its holding that imposition of
fines, fees or assessments without a hearing on ability to pay denies due
process. It was that court’s view it was the trial court’s duty to hold a
hearing and thus failure to seek a hearing did not result in forfeiture.
Further, the court found that the burden to prove ‘present’ ability to pay was
on the prosecution. Other courts, including this court, have disagreed with
Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861,
863 (Keene); see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327
[rejecting the Dueñas due process analysis for fines and fees], review granted
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061
[applying excessive fine analysis for restitution fines]; and
People v. Kopp (2019) 38 Cal.App.5th 47, 95–96, review granted Nov. 13,
2019, S257844 [concluding a defendant who requested ability to pay hearing
bears burden of proof and applying due process analysis to court assessments
and excessive fines analysis to restitution fines].)
      The court here imposed the maximum restitution fine of $10,000
(§ 1202.4, subd. (b)) along with an additional restitution fine of $10,000 (§
1202.45), which the court stayed unless supervision is revoked. The court


                                        11
imposed a court security fee of $200 (§ 1465.8), the immediate critical needs
account fee of $150 (Gov. Code, § 70373), a criminal justice administration fee
of $154 (Gov. Code, § 29550.1), a drug program fee in the amount of $615
(Health & Saf. Code, § 11372.7), and a lab analysis fee of $205 (Health & Saf.
Code, § 11372.5).
      Silva did not object to the fines or fees or request an ability to pay
hearing in the trial court at the time of sentencing, which was more than a
month after the Dueñas case was published. (§ 1237.2; see People v. Trujillo
(2015) 60 Cal.4th 850, 861 [“[T]he sentencing hearing is, in general, the
proper time for a defendant to assert all available procedural and factual
contentions relating to the trial court’s sentencing choices ….”].) “The
concept of forfeiture for failure to raise ability to pay fines, fees or
assessments is well established in our case law prior to Dueñas.” (Keene,
supra, 43 Cal.App.5th at p. 864; see People v. Nelson (2011) 51 Cal.4th 198,
227 [forfeiture for failure to object to $10,000 restitution fine on grounds of
ability to pay]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture for
failure to assert that the trial court must consider inability to pay when
imposing more than the statutory minimum restitution fine].) Therefore, we
conclude Silva forfeited the challenge to the restitution fines and fees.
(Keene, at pp. 863–864.)
      However, even exercising our discretion to consider the claim on the
merits (see People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6), we conclude
remand is not necessary. Because we exercise our discretion to consider the
issue on the merits, we need not address Silva’s assertion of ineffective
assistance of counsel for failure to object to the fines and fees, which he raised
for the first time in his reply brief.




                                         12
      First, we agree with the People that the restitution fine is
constitutional. In the recent case of People v. Son (2020) 49 Cal.App.5th 565
the court concluded there is no constitutional requirement for a court to
determine an ability to pay a restitution fine. The court explained, “fines
imposed as punishment on their own, without conversion to incarceration as
a consequence of being unable to pay, need not take account of ability to pay
to be constitutionally acceptable,” (id. at p. 593, italics omitted), because
nonpayment would result merely in enforcement of a judgment for the debt.
“[T]he Constitution does not prevent a state from enforcing a money
judgment for a punitive fine against an indigent defendant.” (Id. at p. 593
citing Williams v. Illinois (1970) 399 U.S. 235, 244, Tate v. Short (1971) 401
U.S. 395, 399, and Bearden v. Georgia (1983) 461 U.S. 660, 672.) Similarly,
“the imposition of [a] restitution fine without regard to a defendants’ ability
to pay survives rational basis review and, in turn, is not unconstitutional.”
(Son, at p. 595.) A restitution fine, “being punishment, can properly be
imposed on a defendant who is unable to pay it because … there is no
fundamental unfairness in facing enforcement of a money judgment for a
delinquent debt as a consequence of being unable to satisfy a monetary
punishment …. [¶] … [T]here is no fundamental right not to be burdened by a
punitive fine.” (Id. at pp. 596; see also id. at p. 599 (conc. & dis. opn. of
Franson, J.).)
      Second, any error in imposing non-punitive fees and assessments
without determining ability to pay, even if it was not forfeited, was harmless
in this case. In People v. Johnson (2019) 35 Cal.App.5th 134 (Johnson), the
court concluded any error in imposing a restitution fine and court fees and
assessments without an ability to pay hearing was harmless because the
record showed the defendant had some financial means and past income-


                                         13
earning capacity as well an ability to earn prison wages. (Id. at pp. 137, 139–
140; see People v. Jones (2019) 36 Cal.App.5th 1028, 1035–1036 [same].)
Similarly, the record here shows Silva is a skilled tradesman who owned and
operated his own plumbing business for over a decade before this incident
and his son continued to run the business after Silva was taken into custody.
Silva submitted letters from clients attesting to his skill and work ethic.
Silva will have an opportunity to work in prison and may employ his skills.
Therefore, the record before us forecloses an inability-to-pay argument for the
$1,324 in court fees and assessments imposed in this case and renders any
error harmless. (Jones, at p. 1035; Johnson, supra, 35 Cal.App.5th at
pp. 139–140; see People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court
may consider a defendant’s future ability to pay restitution].)
                                       IV
                                DISPOSITION
      The judgment of conviction for count 6, possession of
methamphetamine for sale under Health and Safety Code section 11378, and
the accompanying enhancement under Penal Code section 12022, subdivision
(c), is reversed. The sentence as to count 6 is vacated. In all other respects,
the judgment is affirmed. Upon issuance of our remittitur, the trial court is
directed to amend the abstract of judgment to strike the conviction and




                                       14
sentence for count 6 and the accompanying enhancement and send a certified
copy of our opinion along with the amended abstract of judgment to the
Department of Corrections.




                                                         McCONNELL, P. J.

WE CONCUR:



HALLER, J.



AARON, J.




                                     15
