People v. Rascon CA1/1

Filed 10/5/21 P. v. Rascon CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A157158
v. (Contra Costa County
IVAN RASCON, Super Ct. No. 5190047-1)
Defendant and Appellant.
Defendant Ivan Rascon appeals from the trial court’s sentencing order,
imposing a four-year prison term after a jury convicted him of first-degree
burglary with a person present. (See Pen. Code,1 §§ 459, 667.5, subd. (c).)
Rascon contends that the trial court abused its discretion and violated his
constitutional rights by refusing to sever his trial from that of his
codefendant, Kenneth Goodman. He also asserts that the trial court erred by
imposing $70 in fees and assessments at sentencing without a finding
regarding his ability to pay. Seeing no error, we affirm.
All statutory references are to the Penal Code unless otherwise
1
specified.
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I. FACTUAL AND PROCEDURAL BACKGROUND2
A. December 2018 Residential Burglary
On December 19, 2018, at approximately 11:00 a.m., Antioch Police
Officer Padilla was dispatched to a home on Buchanan Street in Antioch. He
contacted the resident, A.S., who was nervous and shaking. She stated she
was in the backyard with her baby when she heard noises outside the yard’s
side fence. She walked into her house and, through a window, witnessed a
man trying to climb over her security gate. She called the police. The man
was attempting to crawl through a gap above the iron security gate and
below the decorative finish attached to the porch roof. The top of his body
was through the gap up to his chest. He was unable to get into the enclosed
porchway, where a small package was located. When A.S. confronted him, he
walked away.
A.S. then walked up to the security gate and looked toward the side
fence where she had initially heard the noises. She saw another man
jumping over the fence and walking down the driveway to the sidewalk. The
two men then walked away together. Shortly thereafter, A.S. identified
Rascon as the man who had attempted to climb through the gap above the
security gate, and Goodman as the man who had jumped the fence and joined
him.
Officer Padilla testified it would have been challenging for A.S. to see
Goodman climbing the side fence from the security gate, but not impossible
2Since the underlying facts in this case are only relevant with respect
to Rascon’s challenge to the denial of his motion to sever, we summarize them
as they were known to the trial court at the time it denied the severance
motion following the preliminary hearing on January 8, 2019. (See People v.
Elliot (2012) 53 Cal.4th 535, 552 (Elliot)), discussed infra.
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for her to see a leg swing over. He did not measure the gap Rascon was
attempting to climb through but stated it would be hard to get inside without
really squeezing. He described Rascon as tall and lanky.
B. Goodman’s April 2017 Residential Burglary
On April 27, 2017, Antioch Police Officer Bledsoe was dispatched to an
apartment complex on Sycamore Drive in Antioch at approximately 9:44 a.m.
Officer Bledsoe was traveling eastbound on Sycamore when he observed a
white male, later identified as Goodman, rounding the corner and being
pursued by a woman wielding a broom. The woman, C.D., directed the
officer’s attention to Goodman and exclaimed, “ ‘That’s him.’ ” Goodman was
taken into custody. C.D. explained to the officer that she was in her kitchen
when she noticed Goodman standing inside her apartment with a hatchet.
She screamed, and he fled. Officer Bledsoe swept the second-floor apartment
and discovered an open window in the bedroom and a window screen lying
outside on the ground. Nothing was found missing from the apartment.
C.D. told Officer Bledsoe that, as she was chasing Goodman out of the
apartment building, she came across an individual identified as Marcus
Dukes who stated to her: “ ‘I told him he went into the wrong house.’ ”
Dukes also told Goodman to run so he wouldn’t get in trouble. C.D. surmised
that the two men might have something to do with the apartment next door
to hers, which allowed transients to come in and out. Officer Bledsoe spoke
to the apartment manager, who stated that approximately 30 minutes before
the incident, Dukes and another African-American man asked to enter the
apartment next door to C.D.’s to retrieve Dukes’s belongings. When
interviewed, Goodman reported that he was approached by an African-
American man on the street who asked for help entering his girlfriend’s
apartment to retrieve some of his belongings while the girlfriend was at
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work. He identified this person as Dukes. At a follow-up interview the next
day, C.D. reported that, after the incident with Goodman, Dukes had forced
his way into the apartment next door.
C. Pretrial Matters
In January 2019, both Rascon and Goodman were charged by
information with felony first-degree burglary with a person present based on
the December 2018 incident (§ 459, count one). Count one was enhanced by
allegations that the offense was a violent felony (§ 667.5, subd. (c)), and that
the defendants were ineligible for probation (§ 462, subd. (a)) and if convicted,
must serve their sentence in state prison (§ 1170). Goodman was additionally
charged under count two with felony first-degree burglary with a person
present based on the April 2017 incident (§ 459), which was enhanced by the
same allegations as count one. The information included several special
allegations related to Rascon’s 1999 conviction for robbery (§ 211), which
were later stricken by the prosecutor.
Prior to the jury trial in this matter, Rascon’s attorney filed a motion to
sever counts or codefendants. Although he conceded that count two involving
only Goodman could be joined with count one under section 954, defense
counsel asked the trial court to exercise its discretion to sever the counts,
sever the codefendants, or bifurcate the counts. Specifically, counsel argued
that the facts regarding Goodman’s alleged April 2017 residential burglary
were likely to inflame the jury against Rascon, causing a finding of guilt by
association. Counsel for Goodman also requested that the defendants be
severed, arguing that the evidence against Rascon as to count one was more
definitive than the evidence against Goodman. Goodman’s attorney also
objected to the weaker 2017 case being joined with the stronger 2018 offense.
The trial court denied both motions to sever. Although the issue was
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apparently discussed in chambers, the court did not put its reasoning on the
record.
D. Jury Verdict and Sentencing
On April 4, 2019, the jury found both Rascon and Goodman guilty as
charged. At sentencing on April 26, 2019, the trial court denied probation
and sentenced Rascon to four years in state prison, the middle term. The
trial court declined to imposes a number of fines and fees based on Rascon’s
inability to pay but did impose a $40 court operations assessment (§ 1465.8)
and a $30 court facilities assessment (Gov. Code, § 70373), stating that those
fees could not be waived. Rascon timely appealed.
II. DISCUSSION
A. Denial of Motion to Sever
On appeal, Rascon argues that the trial court’s refusal to sever either
counts or defendants was an abuse of discretion and a violation of his
constitutional right to a fair trial. We find no merit to these claims.
“Our Legislature has expressed a strong preference for joint trials.”
(People v. Souza (2012) 54 Cal.4th 90, 109 (Souza).) “Joinder is ordinarily
favored because it avoids the increased expenditures of funds and judicial
resources that may result from separate trials . . . [and], therefore, ‘is the
course of action preferred by the law.’ ” (People v. Simon (2016) 1 Cal.5th 98,
122 (Simon).) Indeed, the California Constitution expressly provides that it
“shall not be construed by the courts to prohibit the joining of criminal cases
as prescribed by the Legislature or by the people through the initiative
process.” (Cal. Const., art. I, § 30, subd. (a).)
We review a trial court’s decision not to sever for abuse of discretion
based on the record when the motion is heard. (Elliot, supra, 53 Cal.4th at p.
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552.)3 Whether a trial court abuses its discretion in denying severance
depends on the particular circumstances of each case. (Simon, supra, 1
Cal.5th at p. 123.) “Where, as here, the statutory requirements for joinder
are met, a defendant must make a ‘clear showing of prejudice’ to establish
that the trial court abused its discretion in denying the motion.” (Id. at pp.
122-123.) Finally, “even if the trial court’s ruling was proper as a matter of
state law, we will reverse the judgment if the defendant shows that joinder of
the charges actually resulted in ‘ “ ‘gross unfairness’ ” ’ amounting to a denial
of due process.” (Id. at p. 123; Ervin, supra, 22 Cal.4th at p. 69 [“a reviewing
court may reverse a conviction when, because of consolidation, ‘ “gross
unfairness” ’ has deprived the defendant of a fair trial”].)
Section 1098 provides in pertinent part: “When two or more defendants
are jointly charged with any public offense, whether felony or misdemeanor,
they must be tried jointly, unless the court order[s] separate trials.” The
court’s discretion to order severance of defendants is guided by certain
nonexclusive factors “ ‘such that severance may be appropriate “in the face of
an incriminating confession, prejudicial association with codefendants, likely
confusion resulting from evidence on multiple counts, conflicting defenses, or
the possibility that at a separate trial a codefendant would give exonerating
testimony.” ’ ” (Souza, supra, 54 Cal.4th at p. 110.) “A prejudicial association
justifying severance will involve circumstances in which the evidence
regarding one defendant might make it likely the jury would convict that
defendant of the charges and, further, more likely find a codefendant guilty
based upon the relationship between the two rather than upon the evidence
3
If further developments occur during trial that a defendant believes
justify severance, he or she must renew the motion to sever. (People v. Ervin
(2000) 22 Cal.4th 48, 68 (Ervin).) Rascon did not do so in this case.
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separately implicating the codefendant.” (People v. Letner and Tobin (2010)
50 Cal.4th 99, 152 (Letner).)
We begin with the observation that, pursuant to section 1098, the trial
court was required to try the two defendants jointly for the December 2018
burglary unless it found that the presence of certain factors made such
joinder inappropriate. Indeed, since Rascon and Goodman were charged as
co-perpetrators of the 2018 burglary, this charge presented a “ ‘classic’ case”
for a joint trial. (See People v. Keenan (1988) 46 Cal.3d 478, 499-500 [“A
‘classic’ case for joint trial is presented when defendants are charged with
common crimes involving common events and victims” ].) Moreover, other
factors that might warrant severance were not present in the record at the
time the trial court rendered its decision. There was no incriminating
confession, conflicting defenses, or any indication that co-defendant Goodman
would give exonerating testimony at a separate trial. (See People v. Massie
(1967) 66 Cal.2d 899, 917.) Nor was there a likelihood of confusion resulting
from evidence on multiple counts, as the co-defendants were charged under a
single, straightforward joint count, and Goodman’s charge under count two
was similarly straightforward. (See Souza, supra, 54 Cal.4th at p. 110.)
Thus, we see no abuse of discretion in the trial court’s decision to jointly try
Rascon and Goodman for the December 2018 burglary.
We similarly find no merit to Rascon’s argument that the joinder of
charges was an abuse of discretion. “Under section 954, ‘[a]n accusatory
pleading’ may charge ‘two or more different offenses of the same class of
crimes or offenses, under separate counts.’ ” (Elliot, supra, 53 Cal.4th at p.
551.) As Rascon acknowledges, the two charged burglary offenses are crimes
of the same class, thus satisfying the statutory requirement for joinder.
Nonetheless, “[s]ection 954 also provides . . . that the trial court, acting ‘in the
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interests of justice and for good cause shown, may in its discretion order that
the different offenses . . . be tried separately.’ In exercising that discretion, a
trial court should consider (1) whether the evidence relating to the various
charges would be cross-admissible in separate trials, (2) whether some of the
charges are unusually likely to inflame the jury against the defendant, (3)
whether a weak case has been joined with a strong case or with another weak
case, and (4) whether one of the charges is a capital offense or the joinder of
the charges converts the matter into a capital case.” (Elliot, supra, 53
Cal.4th at p. 551.)
Here, neither charge involved a capital offense, and Rascon concedes
that the evidence regarding Goodman’s prior act of petty theft would have
been admissible against Goodman in both burglary cases under Evidence
Code section 1101, subdivision (b), to prove intent.4 In addition, we do not
perceive either charge as particularly stronger or weaker than the other, or
unusually likely to inflame the jury. The primary evidence in each case was
the eyewitness testimony of the resident whose home had been breached.
Both burglaries appeared poorly planned and executed, evincing a lack of
criminal sophistication. Neither burglary involved violence or other
egregious conduct beyond the entering of the residence, and nothing was
actually stolen. While Goodman was carrying a small hatchet in the April
2017 burglary, there was no evidence that he used it in a menacing way.
Indeed, after the close of the prosecutor’s case, the trial court granted the
defense motion to strike the enhancement for personal use of a deadly
weapon for precisely this reason.
4 The court gave a limiting instruction to the jury stating that this
evidence only related to Goodman and only related to whether Goodman had
the intent to commit a theft when he committed a burglary.
8
In the end, the crux of Rascon’s argument is that joining the two
charges provided evidence that Rascon was associating with a man who had
previously committed precisely the sort of offense with which Rascon was
charged, thereby inviting guilt by association. However, based on the record
before the trial court at the time it denied the severance motion, it did not
appear likely that the jury was in danger of finding Rascon guilty “based
upon the relationship between [Goodman and Rascon] rather than upon the
evidence separately implicating [Rascon].” (Letner, supra, 59 Cal.4th 99 at p.
152.) The evidence against Rascon in the December 2018 burglary was
compelling. He was clearly identified by A.S. attempting to climb over the
iron security gate to an enclosed porch, with the top part of his body squeezed
through a tight gap between the security gate and the decorative finish
attached to the porch roof. It is difficult to conceive of an innocent
explanation for such behavior, especially when there was a package sitting
inside the gate on the porch. And as soon as he was confronted by A.S., he
withdrew and walked away.
On the other hand, the evidence against Goodman in the 2017 burglary
was that he had entered an apartment residence through a window, possibly
with the intent to help an acquaintance retrieve some property rather than
with an intent to steal.5 When Goodman was confronted by C.D., he ran
away and was then chased by the victim. Whatever the jury thought of
Goodman, it would convict or acquit Rascon based on the strength of the
testimony of A.S., whom defense counsel was free to cross-examine at trial.
Under such circumstances, we cannot say that the trial court abused its
5The evidence against Goodman in his participation of the 2018
burglary is arguably weaker. He was seen hanging around A.S.’s property
and possibly jumped the fence to join Rascon after the aborted burglary.
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discretion in refusing to sever the two counts. Stated another way, Rascon
has failed to make the “ ‘clear showing of prejudice’ ” necessary to establish
that the trial court abused its discretion in denying the motion. (See Simon,
supra, 1 Cal.5th at pp. 122-123.)
For similar reasons, we see no evidence that joinder of the charges
actually resulted in ‘ “ ‘gross unfairness’ ” ’ amounting to a denial of due
process. (Simon, supra, 1 Cal.5th at p. 123; Ervin, supra, 22 Cal.4th at p. 69.)
“In determining whether joinder resulted in gross unfairness, we have
observed that a judgment will be reversed on this ground only if it is
reasonably probable that the jury was influenced by the joinder in its verdict
of guilt.” (Simon, supra, 1 Cal.5th at pp. 129-130.) The evidence offered to
prove Rascon’s guilt in the December 2018 burglary was straightforward and
distinct from the evidence implicating Goodman in the two crimes charged,
making juror confusion unlikely. Moreover, as discussed above, the evidence
was strong and based on an eyewitness identification of Rascon, and Rascon’s
counsel had every opportunity to cross-examine the witness at trial.
Considering Rascon’s trial as a whole, we conclude it was not grossly unfair,
and thus joinder of the charges relating to the two burglaries did not result in
a denial of due process.
B. Fines and Fees
While the trial court declined to impose a number of fines and fees in
this case based upon Rascon’s inability to pay, it did impose a $40 court
operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov.
Code, § 70373). Citing this District’s decision in People v. Cowan (2020) 47
Cal.App.5th 32 (Cowan), review granted June 17, 2020, S261952, as well as
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Rascon argues that
the imposition of these assessments may violate state and federal
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prohibitions regarding excessive fines as well as constitutional notions of due
process. (See also People v. Kopp (2019) 38 Cal.App.5th 47, review granted
Nov. 13, 2019, S257844.) He suggests we remand the matter for the trial
court to determine whether his inability to pay renders the imposition of
those assessments unconstitutional. We conclude that Rascon has forfeited
this claim.
Under ordinary rules of appellate procedure, the failure to object to the
imposition of fees in the trial court forfeits the issue on appeal. (See People v.
Lowery (2020) 43 Cal.App.5th 1046, 1054 [noting the “traditional rule that a
party must raise an issue in the trial court if they would like appellate
review”]; see also People v. Aguilar (2015) 60 Cal.4th 862, 864 [“the appellate
forfeiture rule applies to challenges to fees imposed at sentencing”].) After
Dueñas was issued in January 2019, appellate courts have reiterated the
requirement that a defendant must challenge the imposition of fines and fees
in the trial court on grounds of inability to pay in order to preserve the issue
on appeal. (See Cowan, supra, 47 Cal.App.5th at p. 50, rev. granted [“upon
proper objection, the court must hold a hearing at which defendant will have
an opportunity to bear his burden of proof on the issue of ability to pay,”
italics added]; Kopp, supra, 38 Cal.App.5th at p. 95, rev. granted [agreeing
with Dueñas to the extent it holds that “due process ‘requires the trial court
to conduct an ability to pay hearing and ascertain a defendant’s ability to pay
before it imposes court facilities and court operations assessments . . .’ if the
defendant requests such a hearing,” italics added]; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1154 [“Given that the defendant is in the best position
to know whether he has the ability to pay, it is incumbent on him to object to
the fine and demonstrate why it should not be imposed.”].)
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Sentencing in this case took place in April 2019, four months after
Dueñas was decided, and it appears that the court and counsel were well
acquainted with the decision as Rascon’s ability to pay was raised, and the
court determined that he did not have the ability to pay even the minimum
restitution fine of $300 under section 1202.4. (See Kopp, supra, 38
Cal.App.5th at p. 95, rev. granted [noting that section 1202.4 generally “ ‘bars
consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum’ ”].) Specifically, the court and
defense counsel had the following colloquy: [THE COURT]: “Restitution
fund fine is $300. The parole revocation fine is $300, but it is stayed. The
Court is finding that there is an inability to pay those two fines. [¶] Am I
right, [defense counsel]? [¶] [DEFENSE COUNSEL]: Yes. [¶] THE
COURT: Okay. The court operation fee of $40 cannot be waived, so that is
imposed. And the criminal conviction assessment fine cannot be waived, and
that is $30. The probation report fee of $176, I find an inability to pay.”
Defense counsel did not object to the imposition of the two assessments,
which are reflected on the related minute order and abstract of judgment. In
contrast, the minute order and abstract note that the restitution fines and
probation report fee were waived based on inability to pay. Under these
circumstances—where ability to pay was expressly raised and defense
counsel nevertheless failed to object to the $70 in assessments—we conclude
that any appellate challenge to the imposition of those assessments has been
forfeited.
Anticipating this forfeiture finding, Rascon argues in the alternative
that defense counsel’s failure to object to the $70 in assessments constituted
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ineffective assistance of counsel.6 “On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.”
(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) Rascon asserts that there
can be no rational tactical purpose for defense counsel’s failure to object, but
we disagree.
The record does not disclose why defense counsel declined to object to
imposition of the two assessments at the April 2019 sentencing hearing, but
we cannot say that counsel had no conceivable tactical purpose for his
inaction. For example, the record indicates that, while Rascon was homeless
at the time of the instant offense, he had over 20 years of experience as a
heating, ventilation, and air conditioning (HVAC) technician and possessed a
401(k) account from which he was borrowing. Thus, defense counsel may
have concluded that Rascon did have the ability to pay these minimal fees.
(Mai, supra, 57 Cal.4th at p. 1009 [ineffective assistance of counsel
unavailable on direct appeal unless there is no satisfactory explanation for
counsel’s failure to act].) We see no ineffective assistance.
III. DISPOSITION
The judgment is affirmed.
6An ineffective assistance of counsel claim must be supported by a
showing that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that the deficient
performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668,
688, 691-692; In re Welch (2015) 61 Cal.4th 489, 514.)
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SANCHEZ, J.
We concur.
MARGULIES, ACTING P.J.
BANKE, J.
(A157158)
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