People v. Mendivil CA6 ( 2020 )

Filed 11/5/20 P. v. Mendivil CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H044357
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1245430)
v.
GARY FRANK MENDIVIL et al.,
Defendants and Appellants.
Juries found defendants Adam Mendivil and Gary Mendivil guilty of felony
resisting or deterring an executive officer, and Gary was found guilty of assault on a
peace officer with means likely to produce great bodily injury.1 As to each defendant, the
trial court suspended imposition of sentence and granted a three-year term of probation
with one year in county jail.
Adam and Gary raise multiple claims of instructional error. First, Gary contends
the trial court erred by instructing the jury that voluntary intoxication is not a defense to
aiding and abetting assault. Second, he contends the trial court failed to instruct the jury
that a defendant is not guilty of assault on a peace officer if the officer was using
excessive force. Alternatively, he contends the court’s instructions impermissibly
directed the jury’s attention away from the collective impact of the excessive force used
by multiple officers. Finally, Gary contends the trial court erred by imposing fines and
1
We refer to the defendants by their first names to avoid confusion.
fees without determining whether he had the ability to pay them under People v. Dueñas
(2019) 30 Cal. App. 5th 1157 (Dueñas).
Adam contends the trial court erred by failing to instruct the jury that the police
were not engaged in the lawful performance of their duties if they were acting in a
discriminatory fashion. Second, Adam contends the trial court erred by imposing fines
and fees without determining whether he had the ability to pay them under Dueñas,
supra.
For the reasons below, we conclude these claims are without merit and we affirm
the judgments.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
In 2014, the prosecution charged both Adam and Gary by information with felony
resisting or deterring an executive officer. (Pen. Code, § 69.)2 The information further
charged Gary with assault on a peace officer with means likely to produce great bodily
injury. (§ 245, subd. (c).) As to both defendants, the information alleged the offenses
were committed for the benefit of, at the direction of, and in association with a criminal
street gang. (§ 186.22, subds. (b)(1)(A) & (b)(1)(B).) As to Gary, the information
alleged he had previously suffered a juvenile adjudication for assault with a deadly
weapon or force likely to cause great bodily injury. (§§ 667, subds. (b)-(i), 1170.12.)
Defendants were tried twice. The first jury found Gary guilty of resisting or
deterring an executive officer, but the jury hung on the assault charge and the gang
allegations. The first jury also hung on the charges and allegations against Adam. The
trial court declared a mistrial on those charges and allegations.
2
Subsequent undesignated statutory references are to the Penal Code.
2
Defendants were tried again in 2016. The second jury found Adam guilty of
resisting an executive officer but found the gang allegation not true. The jury found Gary
guilty of assault on a peace officer but found the gang allegation not true.
As to each defendant, the trial court suspended imposition of sentence and granted
a three-year term of probation with one year in county jail.
B. Facts of the Offenses
The charges arose from a raucous birthday party at defendants’ home in November
2012. Around 10:30 p.m., a neighbor called 911 after hearing what sounded like gunfire
at the party. A group of about four to six police officers responded to the scene. Police
estimated there were more than 50 partygoers at the house. The officers had been told
the house was a “known Northern household and there had been many prior contacts
there by the police.”
When the police arrived, the partygoers who were in the front yard ran into the
house, the back yard, or away down the street. A police officer knocked on the front door
of defendants’ house, but nobody answered or opened the door. Officers heard the
occupants shouting derogatory remarks such as “fuck you” and “fuck the police.” Out of
concern for their safety, the police decided not to enter the house or back yard, and
instead moved to the street where they looked for blood trails and waited to see if any
gunshot victims might appear. In the street, officers observed two cars with expired
registrations. One of the cars belonged to Adam, and the registration had been expired
for more than six months. Police ordered a truck to tow the cars, and when the truck
arrived, officers stood by the truck as it prepared to tow Adam’s car.
At that point, Adam came out of the house “at a fast walk” with his fists clenched
and approached the police in an aggressive manner. He stated, “You ain’t taking my
car,” and used foul language. One of the officers drew his gun and ordered Adam to get
back and go back into the house, but Adam refused to comply. Other officers ordered
Adam to get back, but he continued to approach. He then took up a fighting stance and
3
stood between his car and the ramp of the tow truck. He was agitated, yelling, and “his
chest was puffed.” He did not have any weapons in his hand. At some point, Adam may
have jumped onto the ramp of the tow truck.
Four or five officers formed a circle around Adam, and one of the officers
attempted to grab Adam’s hand to take him into custody for obstruction and resisting
arrest. Adam grabbed the officer’s hand and bent the officer’s fingers back, causing him
pain. Multiple officers then attempted to subdue Adam, and another officer hit him three
times with the butt of a baton. But the officers could not contain Adam. He escaped
from them and ran back into the front yard.
Officer Scott Berget was one of the officers who had tried to grab Adam by the
truck. When Adam got away from them, Officer Berget ran into the yard after him to try
to make the arrest. Officer Berget yelled at Adam to stop and get on the ground, but
Adam did not do so. In the front yard, Adam stopped, turned around, and took up a
fighting stance towards Officer Berget. Officer Berget took out his baton and struck
Adam in the left thigh area. Adam fell to the ground, tried to crawl away, and started
yelling for help.
A crowd of around five to 20 people came out from the house and the back yard
area. People started throwing bottles and other items at the police. Among other objects,
people threw paint cans, chunks of cement, and gardening tools like a pickaxe and
pruners. One officer recalled a car alternator landing near him.
Officer Berget was attempting to handcuff Adam on the lawn when two males
started walking aggressively and directly at the officer. Officer Berget did not see any
weapons or bottles in their hands, but both men were bigger than him. One of the two
males—identified as Gary—stated, “You’re not taking my [fuckin’] brother.” The two
men got in between Adam and Officer Berget, such that Adam was behind the two men.
Officer Berget swung his baton and hit one of the men—not Gary or Adam—in the neck
or shoulder area. The man either backed up or fell down.
4
Officer Berget then took a step back himself, whereupon he was hit in the nose
with a full beer bottle. He dropped to one knee and “things went black” for three to five
seconds. He could feel blood coming down his nose. At that point, he felt a weight on
his back and realized that somebody had jumped on top of him. He could feel someone
punching and kicking him as well.
Another officer who saw the attack testified that a man was directly on top of
Officer Berget, using his body weight to hold Officer Berget to the ground while kicking
him in the back of the head and side of the face. The officer approached and struck the
man on the head with a baton, whereupon the man fell off Officer Berget’s back. At that
point, the officer turned his attention to other people in the crowd, one of whom grabbed
the officer’s baton.
After the weight was removed from his back, Officer Berget was able to get to a
standing position, but he was bent over at the waist. There were two men grabbing on to
either side of him, and he could feel pressure on his duty belt and gun. He felt himself
being dragged towards the backyard gate. He could also feel somebody yanking on his
gun, so he tried to cover it up. Eventually he broke free and made his way back to the
street. He identified one of the two men who had grabbed him as Gary Mendivil. Gary
had been on the non-gun side of Officer Berget. He was missing a full magazine of
bullets from his duty belt.
After the police deployed pepper spray and tasers on the crowd, the partygoers
retreated into the house or ran away onto neighboring properties. Adam’s mother
testified that he had suffered a broken nose, his eyes were purple, his nose was swollen,
and he had bruises and swelling on his arm and knee.
II. DISCUSSION
A. Jury Instructions on Voluntary Intoxication
Gary contends the trial court erred by instructing the jury that voluntary
intoxication is not a defense to the assault charges. He concedes that voluntary
5
intoxication is not a defense to assault itself, but he argues the trial court erred because
the jury was instructed on aiding and abetting, and voluntary intoxication is a defense to
aiding and abetting assault. The Attorney General argues that Gary forfeited this claim
because defense counsel did not object or request any such instruction. The Attorney
General further argues that the trial court properly instructed the jury, and that any error
was harmless. Gary argues that the trial court had a sua sponte duty to instruct the jury
correctly, and that no objection was necessary to preserve the claim for appeal.
1. Legal Principles
Because assault is a general intent crime, “juries should not ‘consider evidence of
defendant’s intoxication in determining whether he committed assault.’ [Citation.]”
(People v. Williams (2001) 26 Cal. 4th 779, 788.) Aiding and abetting, however, requires
specific intent, and voluntary intoxication is therefore a defense against it. “Awareness of
the direct perpetrator’s purpose is critical for the alleged aider and abettor to be culpable
for that perpetrator’s act. A person may lack such awareness for many reasons, including
intoxication. A person who is actually unaware that his or her noncriminal act might help
another person commit a crime should not be deemed guilty of that crime and all of its
reasonably foreseeable consequences even if intoxication contributes to, or is the sole
reason for, that lack of awareness.” (People v. Mendoza (1998) 18 Cal. 4th 1114, 1129.)
We apply the de novo standard of review to a claim of erroneous jury instructions.
(People v. Posey (2004) 32 Cal. 4th 193, 218 (Posey).) In reviewing an ambiguous
instruction, we ask whether there is a reasonable likelihood the jury applied the
challenged instruction in a way that violates the Constitution. (People v. Pettie (2017) 16
Cal. App. 5th 23, 60.) The correctness of jury instructions is determined by looking at the
context of the entire charge, not by considering only part of an instruction or a particular
instruction in isolation. (People v. Salazar (2016) 63 Cal. 4th 214, 248.)
6
2. Procedural Background
The prosecution charged Gary with assault on a peace officer with means likely to
produce great bodily injury. (§ 245, subd. (c).) The trial court instructed jurors it could
find Gary guilty as a perpetrator if he directly committed the assault, or as an aider and
abettor if he aided and abetted others as part of a group assault. The court stated, “Gary
Mendivil is charged in Count 3 with assault on a peace officer with force likely to
produce great bodily injury on Officer [Berget]. If you determine that the evidence
showed that Gary Mendivil was part of a group assault upon Officer [Berget], you may
consider whether Gary Mendivil, during his assault upon Officer [Berget], aided and
abetted the actions of other participants in that group assault. You may not consider
whether Gary Mendivil aided and abetted the actions of other persons before his
participation in a group assault.” The court instructed jurors on the principles of aiding
and abetting using CALCRIM Nos. 400 and 401. Using CALCRIM No. 860, the court
instructed jurors on the elements of assault on a peace officer with means likely to
produce great bodily injury. These instructions said nothing about voluntary intoxication.
The court then instructed jurors that they could convict Gary of the lesser included
offenses of assault on a person with force likely to produce great bodily injury (§ 245,
subd. (a)(4)) and misdemeanor simple assault (§ 240). The court based these instructions
on CALCRIM Nos. 875 and 915, respectively. Nothing in these instructions told the jury
it could convict Gary of aiding and abetting the lesser included offenses. As part of these
instructions, the court instructed the jury twice—once for each offense—that “[v]oluntary
intoxication is not a defense to assault.”3 Defense counsel did not object to either
instruction, and did not request any additional instructions or modifications.
3
The court instructed the jury similarly on the charges against Adam.
7
3. The Trial Court Did Not Err Prejudicially
Gary argues his failure to object did not forfeit the claim on appeal because the
trial court had a sua sponte duty to instruct the jury correctly on the law, and his rights
were substantially affected by the court’s failure to do so. (See People v. Rogers (2006)
39 Cal. 4th 826, 850, fn. 7 [claim of failure to instruct sua sponte not forfeited on appeal];
§ 1259 [an appellate court may review any instruction given, even though no objection
was made, if the substantial rights of the defendant were affected].) We agree and will
consider the merits of the claim.
The Attorney General contends the trial court’s instructions on voluntary
intoxication applied solely to the lesser included offenses, and that the instructions on
aiding and abetting applied solely to the charged offense. Therefore, the Attorney
General argues, nothing in the instructions precluded the jury from considering whether
Gary was too intoxicated to form the intent required for aiding and abetting the charged
offense. Gary contends the jury could have been confused because the instructions on
voluntary intoxication were not explicitly limited to the lesser included offenses or
liability for the charged assault as a direct perpetrator.
We agree with the Attorney General that it is not reasonably likely the jury
misapplied the instructions in the manner that Gary asserts it did. The trial court’s
instructions to the jury on voluntary intoxication were only given in conjunction with the
instructions on the lesser included offenses. Nothing in the instructions on the lesser
included offenses would have allowed the jury to convict Gary of aiding and abetting
those offenses. To the contrary, the instructions on aiding and abetting were expressly
limited to the assault on a peace officer (i.e., Officer Berget).
Even assuming a jury could have misinterpreted the instructions as Gary asserts,
there is no reasonable likelihood the jury here actually did so in finding him guilty. First,
defense counsel never argued Gary lacked the requisite intent based on intoxication. To
8
the contrary, counsel’s theory was that Gary was acting in self-defense of his brother.
Gary’s counsel argued in closing, “His motivation was solely to defend his brother.”
Second, there was no evidence in the record that Gary was intoxicated, so no
reasonable jury could have found he lacked the requisite intent due to intoxication. Gary
points out that the prosecutor argued in closing that the police were attacked by a
“drunken mob,” but an attorney’s arguments do not constitute evidence, and there was no
evidence or indication that Gary himself was intoxicated. Beyond a reasonable doubt,
there is no chance the jury would have reached an outcome more favorable to Gary in the
absence of any assumed error. Any error was therefore harmless under either the federal
or state law standard for prejudice. (Chapman v. California (1967) 386 U.S. 18, 24)
[federal constitutional standard requires prosecution to prove beyond a reasonable doubt
that error did not contribute to verdict]; (People v. Watson (1956) 46 Cal. 2d 818, 836.)
[state law standard requires defendant to show a reasonable probability of a more
favorable outcome in the absence of the error.]
For the reasons above, we conclude this claim is without merit.
B. Jury Instructions on Assault
The jury found Gary guilty of assaulting Officer Berget with means likely to
produce great bodily injury. (§ 245, subd. (c).) Gary contends the trial court erroneously
instructed the jury on the elements of that offense because it failed to inform the jury that
an officer who is using excessive force is not engaged in the “lawful performance” of his
or her duties. The Attorney General contends Gary forfeited this claim by failing to
object below, and that the trial court correctly instructed the jury regardless.
1. Legal Principles
To convict a defendant of assault on a peace officer, the prosecution must show
the officer was engaged in the lawful performance of his or her duties at the time the
defendant acted. (§ 245, subd. (c).) However, “when an officer uses excessive force in
making an arrest or a detention, the officer is not engaged in the lawful performance of
9
his or her duties.” (People v. Williams (2018) 26 Cal. App. 5th 71, 73.) Therefore, if the
officer was using excessive force at the time when the defendant acted, the defendant is
not guilty of assault on the officer under subdivision (c) of section 245. (People v.
Olguin (1981) 119 Cal. App. 3d 39 (Olguin); People v. White (1980) 101 Cal. App. 3d 161
(White).) “[W]here excessive force is used in making what otherwise is a technically
lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an
offense which requires the officer to be engaged in the performance of his duties.”
(White, at p. 164.) Under these circumstances, however, the defendant may still be guilty
of the lesser included assault charge that does not include the element that the victim is a
peace officer. (Ibid.) Even then, if the defendant was using reasonable force in
protecting himself or herself, he or she is not guilty of this lesser included assault charge.
(Id. at p. 166; Olguin, at p. 47.)
We review the correctness of jury instructions de novo. (Posey, supra, 32 Cal.4th
at p. 218.)
2. Background
Using CALCRIM No. 2672, the trial court instructed the jury that Gary was not
guilty of the assault on a peace officer under section 245(c) “if the officer was not
lawfully performing his duties because he was unlawfully arresting someone.” The court
further instructed, “However, even if the arrest was unlawful, as long as the officer used
only reasonable force to accomplish the arrest, the defendant Gary Mendivil may be
guilty of the lesser crime of Penal Code section 245(a)(1), assault with force likely to
produce great bodily injury. [¶] On the other hand, if the officer used unreasonable or
excessive force and the defendant Gary Mendivil used only reasonable force in self-
defense or defense of another, the defendant Gary Mendivil is not guilty of the lesser
crime of Penal Code section 245(a)(1), assault with force likely to produce great bodily
injury. [. . . ¶ . . .] The People have the burden of proving beyond a reasonable doubt
that the officer was lawfully performing his duties. [¶] If the People have not met this
10
burden, you must find the defendant Gary Mendivil is not guilty of Penal Code section
245(c), assault on a peace officer by means likely to produce great bodily injury[.]”4
Counsel for Gary did not object and did not request and modification or additional
instructions.
3. Any Instructional Error on Assault Was Harmless
Gary argues the trial court erred by failing to instruct the jury that an officer using
excessive force is not lawfully performing his or her duties—a condition that made him
not guilty of assaulting an officer. The Attorney General contends first that Gary
forfeited this claim by failing to object or request any modification to the instructions.
“Even in the absence of a request, a court is under an affirmative duty to give an
instruction on defendant’s theory of defense where ‘ “. . . it appears that the defendant is
relying on such a defense, or if there is substantial evidence supportive of such a
defense . . . .” ’ [Citation.]” (White, supra, 101 Cal.App.3d at p. 167.) As part of their
defenses, both Adam and Gary argued the police acted unlawfully and used excessive
force. Accordingly, we will consider the merits of the claim.
We agree with Gary that under White and Olguin the trial court should have
instructed the jury that an officer using excessive force is not acting within the lawful
scope of his or her duties. Those cases establish that the trial court has a sua sponte duty
to do so when the defense relies on such a theory. (White, supra, 101 Cal.App.3d at p.
167.) It was error for the trial court not to do so here, where Gary argued he was
defending his brother against the use of excessive force.
The Attorney General argues that phrase “even if the arrest was unlawful” in the
latter part of the instruction concerning subdivision (a)(1) implies the use of excessive
4
Although the trial court referenced subdivision (a)(1) of section 245, the portion
of that section defining assault by means of force likely to produce great bodily injury
had been renumbered as subdivision (a)(4) in 2012. (§ 245, subd. (a)(4), as amended by
stats. 2011, ch. 183, § 1.) The error is immaterial.
11
force would preclude conviction under subdivision (c). The Attorney General argues that
read as a whole, “the instruction provides an analytical hierarchy of elements to
determine the conviction.” It is not clear the jury would have drawn such an inference,
and in any event, jurors should not be charged with inferring an analytical hierarchy of
elements based on a trial court’s instructions absent any express language to that effect.
Gary contends that this instructional error requires automatic reversal because it
removed an element of the offense from the jury’s consideration. (See People v.
Talamantez (1985) 169 Cal. App. 3d 443, 458; White, supra, 101 Cal.App.3d at p. 169
[failure to define an element is per se prejudicial].) As the Attorney General points out,
the California Supreme Court has since clarified that the automatic prejudice standard
does not apply in this situation. (People v. Flood (1998) 18 Cal. 4th 470.) It is still
unclear, however, whether the state law standard for prejudice or the federal
constitutional standard applies. (People v. Salas (2006) 37 Cal. 4th 967, 984.)
Under the state law standard, the defendant must show a reasonable probability of
a more favorable outcome in the absence of the error. (People v. Watson (1956) 46
Cal. 2d 818, 836.) Under the federal constitutional standard, the prosecution has the
burden to prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24.) We
conclude the error was harmless under either standard.
Police officers are empowered to use a reasonable degree of force when necessary
to effect an arrest. (§ 835.) “The use of excessive force by law enforcement officers is
analyzed under the Fourth Amendment’s objective reasonableness requirement for a
seizure of the person.” (People v. Brown (2016) 245 Cal. App. 4th 140, 157 [citing
Graham v. Connor (1989) 490 U.S. 386 (Graham)].) Under Graham, the question is
“whether the amount of force the officers used in making the arrest was objectively
unreasonable given the circumstances they faced.” (Allgoewer v. City of Tracy (2012)
207 Cal. App. 4th 755, 763.)
12
The evidence overwhelmingly established that Officer Berget was attempting to
arrest Adam after he interfered with the lawful impoundment of his vehicle, violating
section 148. Officer Berget was therefore legally empowered to use a reasonable and
necessary amount of force to arrest Adam. The evidence showed Adam injured an
officer in evading arrest—bending the officer’s fingers back when the officer attempted
to arrest him—whereupon Adam ran into the yard and Officer Berget pursued him.
Officer Berget yelled at Adam to stop and get on the ground, but Adam did not do so.
Instead, he turned around and took up a fighting stance toward Officer Berget. At that
point, Officer Berget struck Adam in the leg with a baton and attempted to arrest him,
whereupon Adam called out for help and multiple partygoers entered the fray.
Multiple officers reported that the crowd was throwing bottles, garden tools,
chunks of cement, and other dangerous objects at the police. At this point, Gary and
another man intervened on Adam’s behalf. The two men directly approached Officer
Berget and interfered with his arrest of Adam. After Officer Berget struck one of the
men with a baton, Officer Berget was struck in the face with a full beer bottle, and the
two men attacked him. For the remainder of the incident, he was occupied with
extracting himself from the melee and preventing the two men from taking his firearm.
Given these circumstances, there is no evidence in this record that any reasonable
jury could rely on to conclude that Officer Berget used excessive force. We conclude
that overwhelming evidence showed the instructional error in this regard was harmless
beyond a reasonable doubt.
In the alternative, Gary contends the trial court’s instruction on lawful
performance “impermissibly directed the jury away from the collective impact of the
force used by multiple officers and away from the most extreme instances of force” used
by other officers. The Attorney General notes that the specific instruction which Gary
challenges in this part of his brief (CALCRIM No. 2670) applied solely to the charges
13
against Adam. The Attorney General is correct. Accordingly, Gary has no standing to
challenge this instruction.5
For the reasons above, we conclude these claims are without merit.
C. Jury Instructions on Resisting an Officer
The jury found Adam guilty of felony resisting an executive officer in the
performance of his duties. (§ 69.) Adam contends the trial court erred by failing to
instruct the jury that the police officer was not lawfully performing his duties if he was
acting in a discriminatory fashion. He argues that the jury could have found the police
were acting unlawfully by towing his vehicle because the officers felt they were treated
disrespectfully by the occupants of defendants’ house. He further contends the trial
court’s instructions effectively instructed the jurors that the police were acting lawfully as
a matter of law because the instructions prohibited the jury from considering whether the
officers were enforcing the law in a discriminatory fashion. The Attorney General
contends Adam forfeited these claims, and that the trial court properly instructed the jury
on the relevant law.
1. Legal Principles
“[A] defendant cannot be convicted of an offense against a peace officer
‘ “engaged in ... the performance of ... [his or her] duties” ’ unless the officer was acting
lawfully at the time the offense against the officer was committed. [Citation.] ‘The rule
flows from the premise that because an officer has no duty to take illegal action, he or she
is not engaged in “duties,” for purposes of an offense defined in such terms, if the
officer’s conduct is unlawful.... [¶] ... [T]he lawfulness of the victim’s conduct forms part
of the corpus delicti of the offense.’ [Citation.]” (In re Manuel G. (1997) 16 Cal. 4th 805,
5
In his reply brief, Gary contends this argument applies to his conviction in the
first trial for violating section 69. That is not the argument he presented in his opening
brief; in his opening brief, this argument pertained solely to his conviction under section
245. We will not consider a claim raised for the first time in a party’s reply brief.
14
815.) This applies to the offense of resisting an officer as under section 69. (Ibid.)
“Disputed facts relating to the question whether the officer was acting lawfully are for the
jury to determine when such an offense is charged.” (People v. Jenkins (2000) 22 Cal. 4th
900, 1020.) We review the correctness of jury instructions de novo. (Posey, supra, 32
Cal.4th at p. 218.)
To establish a claim of discriminatory enforcement, the defendant must prove:
(1) that he or she has been deliberately singled out for prosecution on the basis of some
invidious criterion; and (2) that the prosecution would not have been pursued except for
the discriminatory design of the prosecuting authorities. (Baluyut v. Superior Court
(1996) 12 Cal. 4th 826, 832 (Baluyut).) “There must be discrimination and that
discrimination must be intentional and unjustified and thus ‘invidious’ because it is
unrelated to legitimate law enforcement objectives, but the intent need not be to ‘punish’
the defendant for membership in a protected class or for the defendant’s exercise of
protected rights.” (Id. at p. 833, italics added.) When there is no legitimate law
enforcement purpose for singling out persons for prosecution, the prosecution is arbitrary
and unjustified and thus results in invidious discrimination. (Id. at p. 835.)
2. Procedural Background
The trial court instructed the jury based on CALCRIM No. 2652 as follows: “To
prove that the defendant is guilty of this crime, the People must prove, that, one, the
defendant unlawfully used force or violence to resist an executive officer; two, when the
defendant acted, the officer was performing his lawful duty; and three, when the
defendant acted, he knew the executive officer was performing his duty. [¶] An
executive officer is a government official who may use his or her own discretion in
performing his or her job duties.” The court added, “The duties of a police officer
include enforcing Vehicle Code violations and arresting people for crimes. [¶] [. . .] [A]
peace officer is not lawfully performing his or her duties if he or she is unlawfully
15
arresting or detaining someone or using unreasonable or excessive force in his or her
duties.”
Counsel for Adam did not object or request any additions or modifications to these
instructions.
3. The Trial Court Properly Instructed the Jury on Resisting a Peace Officer
Adam argues the trial court had a sua sponte duty to instruct the jury that police
officers do not act lawfully if they enforce the law in a discriminatory fashion. He argues
that the instruction was required because the police arranged to tow his car for the
purpose of retaliating against the people in the house after the partygoers were
disrespectful to the police and refused to cooperate.
We are not persuaded. The record established that the registration on Adam’s car
had expired almost a year before the incident. A registration application was in process
but still incomplete because the owner had not fully paid the registration fees or had
failed to supply a smog certification. The police testified that some officers would
choose not to tow a vehicle if the registration application was in process but it is
“ultimately the decision of the officer. As long as he falls within the vehicle code, he can
tow whatever vehicle he wants.”
Adam does not contend that police discriminated against him based on his
membership in any protected class. To support his claim that the police acted unlawfully,
Adam points to the testimony of Officer Jason Cook. When asked if police had the
discretion not to tow a vehicle when the registration application is in progress, Officer
Cook answered affirmatively: “Yeah. If the owner comes out and he is approaching me
and shows me documentation, I have a temporary registration. If I didn’t see it on the car
or something, I can point it out and I say, okay, pull it in your driveway, pull it off the
street.” He then testified that he chose not to be lenient because he “wasn’t approached
in a civil manner” after Adam came out of the house and “appeared to want to fight.”
16
Adam also argues the police did not attempt to tow another vehicle nearby that also had
an expired registration.
Assuming the police declined to exercise their discretion in Adam’s favor when he
was rude and aggressive, or decided to tow his car because the persons attending the
party at his home were disrespectful, the officers’ decision was not based on the kind of
“invidious criterion” required to show discriminatory enforcement. (Baluyut, supra, 12
Cal.4th at p. 832.) “The defect lies in the denial of equal protection to persons who are
singled out for a prosecution that is ‘deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification.’ (Oyler v. Boles (1962) 368 U.S.
448, 456.)” (Ibid.) The record shows the police had the lawful power to impound
Adam’s car. (Veh. Code, § 4000, subd. (a).) Nothing in the record suggests that the
police decided to tow Adam’s car because he was engaging in an activity protected by the
equal protection clause, or because he belonged to a protected class. Towing the car was
therefore not invidious because it was not “unrelated to legitimate law enforcement
objectives.” (Baluyut, supra, 12 Cal.4th at p. 833, italics omitted.)
Adam briefly contends the trial court effectively instructed the jury that the police
were acting lawfully as a matter of law by instructing the jurors, “The duties of a
police officer include enforcing Vehicle Code violations and arresting people for crimes.”
This instruction, referring to police officers generally, states an uncontroverted principle
of law. No reasonable juror could have interpreted it to mean that the police officers in
this case were acting lawfully as a matter of law.
We conclude these claims are without merit.
D. Imposition of Fines and Fees
Both defendants contend the trial court erred by imposing fines and fees without
determining whether they had the ability to pay them. (See Dueñas, supra, 30
Cal. App. 5th 1157 [imposition of certain fines and fees without determining defendant’s
ability to pay was a violation of due process].) The Attorney General contends they
17
forfeited this claim by failing to request a hearing below; that Dueñas was incorrect on
the merits; and that nothing in the record shows the defendants lacked the ability to pay.
1. Background
The trial court imposed a court operations assessment of $80 on Gary Mendivil
and $40 on Adam Mendivil (§ 1465.8); a court facilities assessment of $60 on Gary and
$30 on Adam Mendivil (Gov. Code, § 70373); a criminal justice administration fee of
$129.75 on both defendants (Gov. Code, § 29550.1); a probation investigation fee of
$450 on both defendants (§ 1203.1b); a probation supervision fee of $110 on both
defendants (§ 1203.1b); the minimum restitution fine of $240 on both defendants
(§ 1202.4, subd. (a)(1)); and a probation revocation restitution fine of $240 on both
defendants (§ 1204.44).
At the sentencing hearing for Adam, the court stated, “The defendant is ordered to
complete under penalty of perjury a ‘statement of assets’ to determine his ability to pay
the fines and fees as ordered by the court. [¶] The defendant is entitled to a hearing if he
believes the court’s imposition of fines and fees are inappropriate. [¶] The defendant is
ordered to report to the Department of Revenue within 30 days of his release for
completion of a payment plan for fines and fees and a determination of his ability to pay
fines and fees.” The court made a substantially identical statement at Gary’s sentencing
hearing.
Neither defendant objected, and neither requested a hearing on their ability to pay.
2. The Trial Court Did Not Err by Imposing Fines and Fees
The Attorney General contends defendants forfeited this claim by failing to object
or request a hearing on their ability to pay in the trial court. Defendants contend the
claim was not forfeited because Dueñas was only decided during the pendency of the
appeal, long after the fines and fees were imposed. They argue any objection therefore
would have been futile.
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California courts of appeal have split on the issue of whether a claim under
Dueñas is forfeited on appeal when the fines and fees were imposed before that opinion
was issued. (See People v. Santos (2019) 38 Cal. App. 5th 923 [defendant did not forfeit
claim]; People v. Frandsen (2019) 33 Cal. App. 5th 1126 [defendant forfeited claim].)
Here, however, the trial court expressly notified both defendants of their right to a
hearing on ability to pay and ordered them to submit statements of their assets to support
such a determination. No such statements appear in the record. On this record, we
cannot say it would have been futile for the defendants to request a hearing or to assert
their inability to pay.
Assuming the defendants did not forfeit this claim, however, the record shows
they had the ability to pay the fines and fees imposed here. Gary posted bail in the
amount of $100,000 with a $10,000 bond premium. Adam posted bail in the amount of
$50,000 with a $5,000 bond premium. Gary reported to probation that he had been
employed as a landscaper and mover before the offense, and he planned to attend
culinary school to work as a cook. Adam worked as a mover and a forklift operator prior
to the offense, and he was working as a full-time warehouse supervisor prior to
sentencing. He told probation he planned to work as a truck driver for a moving
business, and he indicated his prior employer would hire him. In Dueñas, by contrast, the
defendant was an indigent mother of two children receiving $350 in monthly cash
benefits and $649 in food stamps. (Dueñas, supra, 30 Cal.App.5th at p. 1157.) Dueñas
had no home, no bank account, no credit, and she suffered from cerebral palsy. There is
nothing in the record here to show the defendants were in comparable financial straits.
For the reasons above, we conclude these claims are without merit. We will
affirm the judgments.
III. DISPOSITION
The judgments are affirmed.
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_______________________________
Greenwood, P.J.
WE CONCUR:
_______________________________________________
Bamattre-Manoukian, J.
______________________________________
Grover, J.
People v. Mendivil, et al
No. H044357