People v. Butterfield CA5 ( 2021 )

Filed 4/30/21 P. v. Butterfield CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079685
Plaintiff and Respondent,
(Kern Super. Ct. No. DF013649A)
v.
ROBERT BUTTERFIELD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David Wolf,
Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C.
Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Robert Butterfield, a prison inmate at the California
Department of Corrections and Rehabilitation (CDCR), attacked a physician at the prison
clinic with a razor and repeatedly slashed her head and neck. He pleaded guilty to
attempted premeditated murder, admitted five prior strike convictions, and was sentenced
to a stipulated third strike term of 25 years to life.
On appeal, defendant argues the court abused its discretion when it denied his
motion at the sentencing hearing not to impose any fines or fees based on People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS1
On February 5, 2018, defendant arrived at the prison clinic for an appointment
with Dr. Omolae Ogun. Defendant entered her office, closed the door, and sat down. Dr.
Ogun opened the door and sat down to conduct the appointment. Defendant suddenly
stood up and punched Dr. Ogun in the face. Dr. Ogun later reported that she lost
consciousness after he punched her. When she regained consciousness, defendant was
holding her by the neck, and he was repeatedly hitting and slashing her. Defendant used
an inmate-manufactured weapon and slashed her several times on the back of her neck
and head. Dr. Ogun tried to push defendant away but was unsuccessful.
Officer Jacob Argueta heard Dr. Ogun screaming and responded to the office. He
found defendant face-to-face with Dr. Ogun with his arms wrapped around her neck.
Argueta ordered defendant to immediately stop and get down, but defendant ignored the
1 At the plea hearing, the parties stipulated to the probable cause statements and
the prison’s incident reports for the factual basis for his plea. On June 5, 2020, defendant
filed a request for this court to take judicial notice of these documents, attached as
Appendix A to his request. The People did not oppose the request. This court deferred
ruling on the request pending consideration of this case on the merits.
We grant defendant’s request for judicial notice of the documents in Appendix A
for the limited purpose of establishing what the parties stipulated to as the factual basis
for defendant’s plea in this case.
2.
order. Argueta punched defendant in the face. Defendant turned from Dr. Ogun and
started to attack Argueta; defendant threw punches and made slashing motions at
Argueta. Argueta grabbed defendant’s arms and threw him to the floor, but defendant
continued to punch and kick Argueta. Argueta later reported that he felt he was “fighting
for my life.”
A nurse heard the screaming, responded to the room, and saw Dr. Ogun crawling
on the floor. The nurse activated her personal alarm device and escorted Dr. Ogun out of
the room. When three additional officers responded, they saw Officer Argueta fighting
with defendant on the floor. The responding officers had to use physical force and baton
strikes to subdue defendant and gain control of his weapon, which was a razor wrapped
with plastic between pieces of wood.
Defendant was taken to a holding cell. About an hour later, he made the
spontaneous statement: “ ‘I wanted to kill that bitch, she’s in cahoots with mental health
not giving me my meds. I was here to kill that bitch.’ ”
Dr. Ogun and Officer Argueta were transported to Tehachapi Hospital for
treatment of their injuries. Officer Argueta had slashes on his right and left arms.
Dr. Ogun was actively bleeding from cuts, lacerations, and slashes on her neck.
Dr. Ogun reported defendant repeatedly slashed the left side of her neck in an attempt to
cut her jugular vein and throat, and the slashing cut off part of her hair. Dr. Ogun needed
eight staples to close the wounds.
The charges
On July 23, 2018, a complaint was filed in the Superior Court of Kern County
charging defendant with count 1, attempted premeditated murder of Dr. Ogun (Pen.
Code, §§ 664, 187, subd. (a), 189); counts 2 and 4, assault with a deadly weapon with
malice by a state prison inmate serving a life sentence committed against, respectively,
Dr. Ogun and Officer Argueta (§ 4500); counts 3 and 5, assault with a deadly weapon
while confined in a correctional institution committed against, respectively, Dr. Ogun and
3.
Officer Argueta (§ 4501, subd. (a)); and count 6, possession of a weapon by an inmate
while confined in a state penal institution (§ 4502, subd. (a)).
It was alleged as to count 1 that defendant personally used a deadly or dangerous
weapon (§ 12022, subd. (b)(1)), and as to counts 1 through 5, that he inflicted great
bodily injury on the victims in the commission of the offenses (§ 12022.7, subd. (a)).
It was further alleged that defendant had five prior strike convictions and four
prior serious felony enhancements (§ 667, subd. (a)).
Plea proceedings
On April 11, 2019, defendant entered into a negotiated disposition. He pleaded
guilty to count 1, attempted premeditated murder of Dr. Ogun, and admitted the five prior
strike convictions, for a stipulated sentence of 25 years to life, to be imposed consecutive
to the term he was already serving, and dismissal of the remaining charges and
allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
Defendant asked to address the court and said: “I want to tell him I’m sorry. I
apologize for my actions.”2
After defendant entered his plea, defense counsel advised the court that he was
going to object to the imposition of any fines and fees at the sentencing hearing pursuant
to Dueñas. The court replied that it would consider the defense motion.
Defendant’s objection to the fines and fees
On June 26, 2019, defendant filed a motion that objected to the imposition of any
fines and fees because he lacked the ability to pay based on the analysis in Dueñas.
Defendant’s motion asserted he was 63 years old; he had been in prison since 1999; he
had previously served other prison terms; and he had no actual earning potential to pay
any fees.
2Defendant’s apology was directly to “him,” perhaps referring only to Officer
Argueta and not to Dr. Ogun, who is female.
4.
Defendant’s motion was supported by records obtained by the prosecution from
CDCR. Defendant asserted these records showed that he had been assigned positions in
prison since 1987, “but has not worked a day of it,” his only recorded attendance was for
14.5 hours at an educational assignment in 2014 with no pay, and he was listed as being
unable to attend for 72 hours. “For every listed assignment since 1997, [defendant] was
listed as ‘not eligible for state pay.’ In 1996 and 1997, he was assigned as a mechanic
and assigned to cell door repair, earning $0.15 per hour, and he is listed as having no
attendance at those assignments (no reason given), as well as no performance evaluations,
and no achievements. In 1995, he was assigned as a yard worker, but was not eligible for
state pay, and no attendance was listed. In 1994, he was assigned as a carpenter, for the
rate of $0.11 per hour, again with no attendance and no explanation. He was also
assigned as a work change porter, but ‘not eligible for state pay’ in 1994, still with no
attendance listed. Finally, in 1987, he was assigned to ‘yard crew’ at the unenviable rate
of $0.08 per hour. No attendance, no explanation.”
On July 1, 2019, the prosecution filed opposition and argued the fines and fees
could be imposed against defendant, even if he was unable to obtain a prison job, based
on People v. Potts (2019) 6 Cal.5th 1012 (Potts).3 The prosecution’s opposition was
supported by documents from CDCR that showed defendant had “a history of money on
his books,” and he had the ability to pay any amount imposed by the court.
Sentencing hearing
On July 24, 2019, the court held the sentencing hearing and began with
defendant’s objection to the imposition of any fines and fees.
Defense counsel argued that it was unconstitutional to order defendant to pay fines
and fees without “formal consideration of whether [he] has a right to pay or not. There is
a presumption that the defendant has no right to pay if he does have a [p]ublic [d]efender.
3 We will discuss Potts in the discussion below.
5.
[¶] But in addition to that, the Court is obligated to have a hearing from the documents
… obtained from CDC[R]. [¶] [Defendant] is 63 years old. He’s serving a very lengthy
sentence, and now is going to serve another sentence of 25 years to life. [¶] My
understanding is that he has not had a job since 2002. He has received no money
whatsoever. And whatever money he does receive, even if he were to have a job, would
be taken 40 percent away. [¶] Given [defendant’s] lack of ability to pay, the fact that
there is a long history that he has not been employed in the prison despite his wishes to
do so, I would request that the Court strike any fines fees, and restitution in the case.”
However, defense counsel did not challenge the documents submitted by the prosecution
as to his prison accounts.
The prosecutor replied it was appropriate to impose fines and fees because
“defendant’s asserted inability to pay is not sufficient to overcome the loss to the victim
in this case.”
The court acknowledged that defense counsel argued defendant was entitled to a
formal hearing and noted that it was conducting such a motion, it heard argument, and it
had reviewed the parties’ pleadings and supporting exhibits. Defense counsel agreed.
The court reviewed the Dueñas opinion and denied defendant’s motion not to
impose any fines and fees. The court found defendant was in “a substantially different
position” than the probationer’s circumstances in Dueñas. The court also found
defendant had the ability to work because he appeared to be an able-bodied person, and
his current conviction occurred because he physically knocked down and attacked the
victim and a prison guard. The court further stated that if defendant ever suffered a
physical injury that left him unable to work, he should contact the public defender’s
office “because we can re-address this in the future.”
The court relied on Potts and found that defendant had the ability to pay fines and
fees, work in prison, “[a]nd he is going to be there for a substantial period of time.” The
court also found defendant committed a serious offense by assaulting a health care
6.
worker in prison, and the offense could have been a murder if the officer had not
intervened.
As for the restitution fine, the court stated it routinely imposed the minimum
amount in inmate cases “when it’s simple possession of a weapon … or simple assault,”
but that would be unfair “to all of those inmates when I have an attempted murder
[conviction] to give the minimum to many of those folks.”
The court noted the maximum restitution fine was $10,000, but found mitigating
factors that defendant entered a plea at an early stage of the proceedings and apologized
to the victim. The court decided to impose a restitution fine of $5,000 (§ 1202.4,
subd. (b)).
The court imposed the stipulated sentence of 25 years to life for attempted
premeditated murder, consecutive to the term he was already serving in Los Angeles
Superior Court case No. VA052978.4
In addition to the $5,000 restitution fine, the court suspended the parole revocation
fine of $300 (§ 1202.45), ordered restitution to both Dr. Ogun and Officer Argueta in an
amount to be determined (§ 1202.4, subd. (f)), and also imposed a $40 court security
assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373).
On July 26, 2019, defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the restitution fine and fees must be stricken because the court
abused its discretion when it denied his motion and imposed these amounts after making
only a “cursory analysis” of his ability to pay, and that finding is not supported by
substantial evidence. Defendant asserts that he has “no definite prospects of future
4In Los Angeles Superior Court case No. VA052978, defendant was convicted of
two counts of robbery in 1999; these offenses were alleged as two of his five prior strike
convictions.
7.
income,” and his violent attack on prison personnel means it is “unlikely that he will be
offered prison work assignments” in the future.
Dueñas held that “due process of law requires the trial court to conduct an ability
to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any
fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)5 We disagree with the
holding in Dueñas. As explained in People v. Aviles (2019) 39 Cal.App.5th 1055(Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is
more appropriate to determine whether restitution fines, fees, and assessments in a
particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068–
1072.) Under that standard, the fines and fees imposed in this case are not grossly
disproportionate to defendant’s level of culpability and thus not excessive under the
Eighth Amendment. (Aviles, at p. 1072.)
Even if we agreed with Dueñas, we would still reject defendant’s constitutional
claims and find the court properly found defendant has the ability to pay the fines and
fees imposed in this case, and any error in failing to hold a lengthier hearing was
harmless. (Chapman v. California (1967) 386 U.S. 18, 24; Aviles, supra, 39 Cal.App.5th
at pp. 1075–1077; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031.)
“ ‘ “Ability to pay does not necessarily require existing employment or cash on
hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a
restitution fine, the court is not limited to considering a defendant’s present ability but
may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the
defendant’s ability to obtain prison wages and to earn money after his release from
custody. [Citation.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
5The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
8.
We agree with the trial court that defendant has the ability to pay the aggregate
amount of fines and fees from probable future wages, including prison wages. (Aviles,
supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094;
People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.)
Defendant complains the court “failed to explore the issue beyond a superficial
assumption that [defendant can] earn money while incarcerated.” However, we also
agree with the trial court’s rejection of this argument based on Potts, supra, 6 Cal.5th
1012. The trial court in Potts ordered a defendant convicted of capital murder to pay the
statutory maximum restitution fine of $10,000, partially based on the probation officer’s
erroneous statement that a condemned inmate would be assigned a job in prison. At the
time of the hearing, the applicable restitution statute permitted the court to consider the
defendant’s inability to pay but defendant did not object. (Id. at p. 1055.) The defendant
filed a postjudgment motion for the court to reduce the fine because of the court’s
mistake and his inability to pay and argued his own source of income in prison was
limited to small financial gifts from family and friends. The court denied the motion and
found that seizing even a small part of the defendant’s income was a minimal burden
considering the incredible loss he inflicted to the victim’s family. (Id. at pp. 1055–1056.)
Potts held the trial court abused its discretion when it imposed the fee based on the
erroneous belief that a defendant sentenced to death would be permitted to work.
However, Potts held the error was harmless beyond a reasonable doubt based on the
court’s findings when it denied the postjudgment motion to modify the fine. (Potts,
supra, 6 Cal.5th at pp. 1055, 1056.) Potts explained that the defendant’s alleged inability
to pay because he lacked a prison job would be “blunted by the fact that he would retain
at least some of the money sent to him” by family and friends. (Id. at p. 1056.) The trial
court was “permitted to conclude that the monetary burden the restitution fine imposed
on [the] defendant was outweighed by other considerations,” such as the seriousness and
gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056–1057.)
9.
There is nothing in the record to show that defendant in this case would be unable
to satisfy the restitution fine and fees while serving his prison term of 25 years to life
imposed in this case, even if he fails to obtain a prison job, particularly given the
prosecution’s evidence that he has consistently had money on his “books” while in
prison.6 (See, e.g., People v. Potts, supra, 6 Cal.5th 1012, 1055–1057; People v. Lewis
(2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
Finally, defendant argued in his motion objecting to the restitution fine and fees
that the court should find he lacked the ability to pay based on the same standard relied
on when a defendant is found unable to repay the costs of appointed representation.
However, a court’s finding that an indigent defendant is unable to repay the costs of trial
representation is based on section 987.8, that contains a specific statutory presumption
that a defendant sentenced to more than one year in prison or county jail does not have
the ability to reimburse defense costs. Such a statutory presumption does not apply to
whether a defendant has the ability to pay the statutorily mandated restitution fine and
fees. (§ 987.8, subd. (g)(2)(B); Aviles, supra, 39 Cal.App.5th at pp. 1074–1075; People
v. Rodriguez (2019) 34 Cal.App.5th 641, 646.)
6 The court sentenced defendant to 25 years to life in this case, consecutive to the
term he was already serving in Los Angeles Superior Court case No. VA052978. Based
on the entirety of the record, it appears defendant was already serving a third strike
indeterminate life term in case No. VA052978 when he committed the instant offense.
Defendant admitted the allegations in the complaint that he had five prior strike
convictions. Defendant’s prior strikes were for first degree burglary in 1983 and 1986,
robbery in 1989, and two more counts of robbery in 1999.
At the time he attempted to murder Dr. Ogun, he was serving the sentence for the
two robbery convictions in 1999, which were from case No. VA052978; he already had
three prior strikes when he was convicted of those two robberies. In addition, it was
alleged in counts 2 and 4 of the complaint, that he was a person sentenced to life in prison
who committed assault with a deadly weapon on Dr. Ogun and Officer Argueta.
10.
DISPOSITION
Defendant’s request for judicial notice of the probable cause statements and
incident reports is granted for the limited purpose of establishing what the parties
stipulated to as the factual basis for defendant’s plea in this case.
The judgment is affirmed.
11.