People v. Latscha CA2/1 ( 2021 )

Filed 4/22/21 P. v. Latscha CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306680
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA111966)
v.
RUDY LATSCHA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Juan Carlos Dominguez, Judge. Affirmed as
modified.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In this second appeal, defendant Rudy Latscha challenges
the judgment following his resentencing. He argues we must
reverse the judgment because (1) the trial court did not order a
new probation report prior to the resentencing hearing; (2) the
trial court misunderstood the extent of its discretion when it
declined to strike two firearm enhancements or impose lesser
enhancements; and (3) the trial court failed to comply with this
court’s remand order concerning the assessment of fines and fees.
As set forth below, we disagree. Defendant, however, is correct
that the abstract of judgment must be modified to reflect properly
his custody credits and local conduct credit. We order the
abstract of judgment to be modified and otherwise affirm the
judgment.
BACKGROUND
In the first amended information, the People charged
defendant with the February 8, 2016 attempted murder of
Louie Gomez (count 1). The People alleged that defendant used
and discharged a firearm within the meaning of section 12022.53,
subdivisions (b) and (c). The People charged defendant in count 2
with the February 8, 2016 shooting at an occupied motor vehicle
and alleged a gang enhancement. Count 3 involved the
January 28, 2016 attempted murder of Gomez along with firearm
enhancements within the meaning of section 12022.53,
subdivisions (b), (c), and (d) and a gang enhancement. In
count 6,1 the People alleged that defendant assaulted Maribel
Montoya with a firearm. The People further alleged that
defendant inflicted great bodily injury on Montoya. In count 7,
1 The amended information did not include a count 4 or 5.
2
the People alleged that defendant assaulted Jose Navarro with a
firearm. With respect to counts 6 and 7, the People alleged a
gang enhancement and that defendant personally used a firearm
within the meaning of section 1203.06, subdivision (a)(1) and
12022.5, subdivision (a). With respect to all counts, the People
alleged that defendant suffered a prior serious or violent felony
conviction within the meaning of the “Three Strikes” law, a
serious felony conviction within the meaning of section 667,
subdivision (a)(1), and two prior convictions within the meaning
of section 667.5, subdivision (b).
The jury “convicted [defendant] of the January 28, 2016
attempted murder of Louie Gomez; the January 28, 2016 assault
with a firearm against Maribel Montoya and Jose Navarro; the
February 8, 2016 attempted murder of Gomez; and shooting at an
occupied motor vehicle.” (People v. Latscha (Apr. 18, 2019,
B283284) [nonpub. opn.], at p. 2 (Latscha I).) The jury also found
the firearm and gang enhancements true. (Ibid.) Defendant
admitted that he suffered a prior strike conviction within the
meaning of the Three Strikes law, section 667, subdivision (a)(1)
and section 667.5, subdivision (b).
1. This court previously affirmed defendant’s judgment
of conviction
The following factual summary is from our April 18, 2019
opinion following defendant’s first appeal:
“Latscha, also known as ‘Tito,’ was a member of the Bassett
Grande gang in the San Gabriel Valley. Latscha had a number of
gang-related tattoos, including the letter “B” on his chin
(representing the Bassett Grande gang), and the word ‘Sureno’ on
the top of his head. A Sureno is a member of any street gang who
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enters prison and commits crimes for the benefit of the Mexican
Mafia prison gang.” (Latscha I, supra, B283284, at p. 3.)
Victim “Gomez, also known as ‘Trigger,’ was a former
member of the Bassett Grande gang. . . . In 2013 or 2014, Gomez
began providing information to the police to avoid arrests for
minor infractions; on occasion, the Los Angeles Police
Department paid Gomez in exchange for information.”
(Latscha I, supra, B283284, at pp. 3–4.) Latscha described
Gomez as a “gang drop-out and/or a ‘green-lighter,’ which is
somebody the gang wants to hurt.” (Latscha I, supra, B283284,
at p. 4.)
“On January 28, 2016, Gomez was in front of his house
flying a drone airplane with his friend, Navarro. Montoya drove
to Gomez’s house and parked in the driveway. Shortly
thereafter, Gomez saw a silver car drive up and stop in front of
his house; Latscha was hanging out of one of the windows
shooting a gun. Latscha aimed the gun at Gomez, but Montoya
was between them. As Gomez ran toward his house, he heard
nine or 10 gunshots. Gomez was shot in the thigh and ankle.
Montoya was shot once in the leg and Navarro, who had been
between Latscha and Gomez at one point during the shooting,
suffered a graze wound to the leg.” (Latscha I, supra, B283284,
at pp. 4–5.)
“On February 8, 2016, Gomez drove in Bassett Grande
territory when he saw Latscha standing on a corner. Latscha
pointed a gun at Gomez and shot several times. There were
eight bullet holes in Gomez’s car, including some in the area of
the driver’s side door.” (Latscha I, supra, B283284, at p. 5.)
In the prior appeal, this court held that “the sentence on
the attempted murder counts must be modified to delete the
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10-year gang enhancements.” (Latscha I, supra, B283284, at
p. 19.) We also held that the case “must be remanded to the trial
court to exercise its discretion [and decide whether] to strike the
firearm enhancements on counts 1 (attempted murder of Gomez)
and 3 (attempted murder of Gomez). (Ibid.) The “trial court
must also exercise its discretion under section 1385 whether to
strike the prior serious felony enhancement.” (Latscha I, at
p. 21.)
This court’s disposition provided: “The judgment of
conviction is affirmed. The sentence is vacated and the matter is
remanded to the trial court with directions to (1) strike the gang
enhancements in counts 1 and 3, (2) exercise its discretion
whether to strike or dismiss the firearm enhancements under
section 12022.53, subdivision (h), (3) exercise its discretion
whether to strike the prior serious felony enhancement, and
(4) resentence Latscha accordingly. The trial court is directed to
prepare an amended abstract of judgment reflecting its changes
to Latscha’s sentence and forward a copy to the Department of
Corrections and Rehabilitation.” (Latscha I, supra, B283284,
at p. 21.)
In a May 10, 2019 order modifying the opinion and denying
rehearing, this court ordered the disposition include the
following: “On remand, the trial court should allow Latscha to
request a hearing on his ability to pay the court operations
assessment (§ 1465.8) and court facilities assessment (Gov. Code,
§70373) pursuant to People v. Dueñas (2019) 30 Cal.App.5th
1157. If Latscha demonstrates his inability to pay, the court
must strike these assessments. The trial court should also
consider whether to allow Latscha to present evidence as to his
inability to pay the restitution fine (§1202.4). If the court
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determines that Latscha does not have the ability to pay the
restitution fine, it must stay execution of the fine.” (People v.
Latscha (May 10, 2019, B283284 [order mod. opn.].)
2. Probation report
A preconviction probation report was filed in superior court
on June 8, 2017. The probation report indicated that as a
juvenile, defendant committed several crimes including the
possession of marijuana, assault with a firearm, and two counts
of minor in possession of a firearm. As an adult, defendant was
convicted of assault with a semiautomatic firearm, possession of
a controlled substance, petty theft, vehicle theft, and being a
felon in possession of a firearm.
Defendant previously was employed in construction,
flooring, and as a tile installer. At the time of his crime,
defendant was on post release supervision with the Los Angeles
County Probation Department. The probation report indicated
that defendant was not eligible for probation.
3. July 2, 2020 resentencing hearing
Following this court’s remand, the trial court held a
resentencing hearing on July 2, 2020. Defendant’s counsel
requested that the trial court exercise its discretion to strike the
firearm enhancement and the prior serious felony enhancement.
The prosecutor argued that defendant did not deserve leniency
because the victims were gravely injured, and defendant was on
parole at the time of the offense, suffered a prior strike
conviction, and harbored specific intent.
Defense counsel did not request an updated probation
report. The trial court noted, “I have no information as to what
has transpired since he’s been to state prison.” The court stated,
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“[I]n looking at him it still appears that he is deeply entrenched
in the gang life. He was certainly then.”
The court indicated it would not exercise its “discretion in
striking the firearm or the prior . . . .” The court described
defendant’s conduct as “an assassination attempt.” “The first
assassination attempt two other people were struck. Not being
deterred, a second assassination attempt was” made. Defendant
struck two people, who were not his intended target.
The court sentenced defendant to a total determinate term
of 22 years 8 months and a total indeterminate term of life with a
minimum parole eligibility date of 78 years. Defendant timely
appealed.
DISCUSSION
A. Defendant Forfeited His Argument and
Demonstrates No Prejudicial Error in Resentencing
Him Without an Updated Probation Report
Defendant argues that the trial court committed prejudicial
error in resentencing him without ordering a new probation
report. Defendant forfeited this argument, which also lacks
merit.
1. Defendant’s argument is forfeited
Defendant did not request a probation report or object to
proceeding without it. Defendant was ineligible for probation
because of his strike conviction and because he used a firearm
during the attempted murders. (§§ 667, subd. (c)(2), 1203.06.)
Because defendant was ineligible for probation, the issue, which
is raised for the first time on appeal, is forfeited. (People v.
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Franco (2014) 232 Cal.App.4th 831, 834; People v. Llamas (1998)
67 Cal.App.4th 35, 39 (Llamas).)
2. Because defendant was ineligible for probation,
the trial court was not required to order a
supplemental probation report
California Rules of Court, rule 4.411(a) provides: “When
required [¶] As provided in subdivision (b), the court must refer
the case to the probation officer for: [¶] (1) A presentence
investigation and report if the defendant: [¶] (A) Is statutorily
eligible for probation or a term of imprisonment in county jail
under section 1170(h); or [¶] (B) Is not eligible for probation but a
report is needed to assist the court with other sentencing issues,
including the determination of the proper amount of restitution
fine; [¶] (2) A supplemental report if a significant period of time
has passed since the original report was prepared.” (Cal. Rules of
Court, rule 4.411(a), italics added.)
The italicized language must be read “in light” of the other
subdivisions and so interpretated, “a supplemental report is
required only if the defendant is eligible for probation.” (Llamas,
supra, 67 Cal.App.4th at pp. 39–40.) In this case, defendant was
not eligible for probation, and therefore the trial court was not
required to order a supplemental report.
Defendant’s authorities do not militate a different
conclusion. For example, defendant cites Dix v. Superior Court
(1991) 53 Cal.3d 442, 448 for the proposition that “ ‘when a case
is remanded for resentencing after an appeal, the defendant is
entitled to “all the normal rights and procedures available at his
original sentencing.” ’ ” At the original sentencing a probation
report is mandatory only if the defendant is eligible for probation.
(Cal. Rules of Court, rule 4.411(a)(1)(A).) Because defendant is
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ineligible for probation, Dix is of no assistance to his argument.
Although a probation report was required in In re Cortez (1971)
6 Cal.3d 78, 82–86, the defendant in that case, was eligible for
probation; defendant here is not. People v. Rojas (1962) 57 Cal.2d
676, is not applicable because in contrast to the case before us
where defense counsel did not request an updated probation
report, in Rojas, “counsel for defendants requested that the
matter again be referred to the probation officer for a new and
current report. The deputy district attorney also asked that the
matter be then referred to the probation department . . . .” (Id.
at p. 679.) Finally, defendant’s reliance on People v. Mercant
(1989) 216 Cal.App.3d 1192 is misplaced because the court that
decided that case has since repudiated it. (People v. Bullock
(1994) 26 Cal.App.4th 985, 987–989.)
3. Defendant demonstrates no prejudice
Even were we to assume for purposes of this appeal that
the trial court should have ordered a supplemental probation
report, defendant demonstrates no prejudice under any standard.
Defendant fails to delineate any conduct occurring after the
initial probation report that would have assisted him in
persuading the court to exercise its discretion in his favor.
Although defendant argues in the abstract that there may be
compelling reasons for ordering a probation report, he identifies
no such compelling reason in this case. Further, defendant’s
assertion that the trial court had no information as to whether
defendant had rehabilitated himself, does not demonstrate
prejudice where defendant identifies no evidence of any such
rehabilitation.
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B. Defendant Fails to Show the Trial Court
Misunderstood the Extent of Its Discretion to Strike
the Section 12022.53 Firearm Enhancements, and
Assuming Error, Defendant Fails to Show Prejudice
A trial court has discretion, in the interest of justice, to
strike or dismiss a section 12022.53 enhancement. (§ 12022.53,
subd. (h).)2 Following this court’s instruction on remand, the
trial court indicated that it would exercise its discretion to impose
the section 12022.53, subdivision (c) enhancement on count 1 and
the section 12022.53 subdivision (d) enhancement on count 3.
Defendant argues that the trial court did not understand that it
had discretion to strike the section 12022.53 subdivision (c) and
(d) enhancements and impose lesser enhancements. The issue is
forfeited because defendant did not raise it in the trial court.
(See People v. Boyce (2014) 59 Cal.4th 672, 730 [“ ‘[C]omplaints
about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised
for the first time on appeal.’ ”]; In re Sheena K. (2007) 40 Cal.4th
875, 881 [“[T]he forfeiture rule applies in the context of
sentencing as in other areas of criminal law. As a general rule
2 Defendant correctly points out that there is a split of
authority as to whether the trial court may impose a lesser,
uncharged enhancement. (Compare People v. Tirado (2019)
38 Cal.App.5th 637, 644, review granted Nov. 13, 2019, S257658
[trial court must impose or strike charged enhancement]; with
People v. Morrison (2019) 34 Cal.App.5th 217, 222–223 [trial
court can impose lesser uncharged enhancement].) This split of
authority is not relevant here because the information, in fact,
charged defendant with both the greater and lesser firearm
enhancements.
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neither party may initiate on appeal a claim that the trial court
failed to make or articulate a ‘ “discretionary sentencing
choice[ ].” ’ ”].)
The record, moreover, reflects no misunderstanding on the
part of the trial court as to the extent of its discretion to strike or
dismiss all firearm enhancements pleaded by the People and
found true by the jury. (See People v. McDaniels (2018)
22 Cal.App.5th 420, 428 (McDaniels) [trial court may strike
greater firearm enhancement and impose lesser charged firearm
enhancement].) We therefore “ ‘presume that the trial court
knew and applied the governing law.’ ” (People v. Wang (2020)
46 Cal.App.5th 1055, 1091.)
In any event, assuming arguendo that the trial court was
unaware of the extent of its discretion, defendant demonstrates
no prejudice. The record indicates that the trial court would not
have reduced the sentence even if it had additional discretion to
do so. (People v. Venegas (2020) 44 Cal.App.5th 32, 42 [rejecting
argument that case should be remanded for resentencing when
trial court indicated that it would not strike “ ‘any weapon
enhancement’ ”].) The court here stated: “The assassination
attempt failed on both times, but Mr. Latscha had no regard for
anyone else who was in the vicinity. [¶] The first assassination
attempt two other people were struck. Not being deterred, a
second assassination” was attempted. “Attempting to kill
anybody is bad enough no matter what means are used, but when
you use a firearm, once the firearm is discharged and the bullet
leaves the barrel, it is indiscriminate. And in this case it struck
two people that were not the intended target of Mr. Latscha.”
Under these circumstances, remand would be an idle act.
(McDaniels, supra, 22 Cal.App.5th at p. 425 [“[I]f ‘ “the record
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shows that the trial court would not have exercised its discretion
even if it believed it could do so, then remand would be an idle act
and is not required.” ’ ”].)
C. Remand Is Not Required for an Ability to Pay
Hearing
In our modified disposition, this court ordered the trial
court to allow defendant “to request a hearing on his ability to
pay the court operations assessment (Gov. Code, § 70373)
pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157.”
(People v. Latscha (May 10, 2019, B283284 [order mod. opn.].)
At the resentencing hearing, defendant’s counsel stated: “I had a
question as to Mr. Latscha’s ability to pay restitution or the court
assessment fees. I don’t know if that was addressed. I had some
paperwork on that that he be allowed to address that issue also.
If the court is permitting him to do so, that I would ask that he be
allowed—the court would strike any of the requirements to pay
any fees related to this case. And I would submit.” Defense
counsel later stated that he had “a two-page document” which
described the Dueñas case. Defense counsel offered no evidence
that defendant lacked the ability to pay any fine or fee.
The trial court imposed a $300 victim restitution fine, a
$300 parole revocation fine, a $30 criminal conviction fee per
count, and a $40 court operation assessment fee per count. The
trial court concluded that the “length of the sentence that the
defendant is going to be serving makes it certain that he would
be able to pay that based on any wages that he may earn in the
state prison. These are a minimum amount of fees that have
been imposed against the defendant.” The court declined to hold
a further ability to pay hearing.
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On appeal, defendant argues that “[t]he trial court was
ordered to strike and/or stay the fines and fees if Latscha
demonstrated his inability to pay.” Defendant argues that the
trial court failed to comply with this court’s disposition when it
declined to hold a further ability to pay hearing. We disagree.
Defendant’s counsel requested the opportunity to “address”
defendant’s ability to pay and the trial court permitted defense
counsel the opportunity to address the issue. Although defense
counsel requested the trial court strike all “fees related to this
case,” defense counsel presented no evidence that defendant
lacked the ability to pay any fine or fee. The trial court concluded
that it imposed only the minimum rates provided by law and that
defendant could pay them based on his prison earnings given the
length of his sentence. In so concluding, the trial court complied
with our prior ruling.
Although on appeal defendant requests “remand for
another resentencing hearing,” he demonstrates no error in the
trial court’s conclusion that he could pay the fines and fees based
on his prison earnings. “[G]oing forward, we know he will have
the ability to earn prison wages over a sustained period.”
(People v. Johnson (2019) 35 Cal.App.5th 134, 139.) Accordingly,
remand for another resentencing hearing to address the minimal
fines and fees the trial court imposed would be another idle act.
D. The Abstract of Judgment Must Be Amended
The abstract of judgment fails to include the credits
awarded to defendant prior to the resentencing hearing. The
parties agree that the abstract of judgment should be amended to
reflect the actual days of custody credit and 72 days of local
conduct credit. The parties disagree as to whether defendant has
1,606 or 1,604 actual days of custody credit.
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According to the probation report, officers arrested
defendant on February 9, 2016. His resentencing hearing
occurred on July 2, 2020. Taking into account two leap years,
the total number of custody credit days should have been 1,606.
(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48
[“Calculation of custody credit begins on the day of arrest and
continues through the day of sentencing.”].) As the parties agree,
the abstract of judgment must be amended to reflect the actual
days of custody credit and the local conduct credits. Because we
find no other error, we reject defendant’s assertion of cumulative
error.
DISPOSITION
Upon remand, the trial court is directed to amend the
abstract of judgment to reflect 1,606 days of custody credit and
72 days of local conduct credit. In all other respects, the
judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment reflecting its changes to
Rudy Latscha’s sentence and forward a copy to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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