P. v. Miffin CA2/4 ( 2013 )

Filed 7/11/13 P. v. Miffin CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B242671
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA390431)
v.
ERIC W. MIFFIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig Richman, Judge. Affirmed.
Michele A. Douglass, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Connie H. Kan, Deputy Attorneys General, for Plaintiff and
Respondent.
Eric W. Miffin appeals from the judgment entered following his conviction
by jury on three counts of residential burglary (Pen. Code, § 459) and one count of
receiving stolen property (Pen. Code, § 496, subd. (a).)1 On appeal, he challenges
the sufficiency of the evidence to support the receiving stolen property count. He
also contends the evidence was insufficient to support the finding of his ability to
pay attorney fees. We conclude that the evidence is sufficient to support the stolen
property count and that appellant forfeited his challenge to the imposition of
attorney fees by failing to object in the trial court. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Burglary Counts
Appellant’s fingerprints were found at the scene of the following three
residential burglaries.
On November 30, 2010, around 8:00 p.m., Lilian Romero returned to her
home in Los Angeles after a three-hour absence and found her front door and
kitchen window open, broken furniture, and several missing items, including
$5,200 cash, a coin collection, and jewelry.
On June 2, 2011, Omar Barrios and his father left their home in Los Angeles
around 7:00 p.m. When Barrios returned around 11:00 p.m., there was a hole in
the front door, and a Sony stereo and money were missing from his father’s
bedroom.
On July 25, 2010, Isidoro Castelan left his home in Los Angeles around
11:00 a.m. and returned around 9:30 p.m. When he returned, he found that his
1
All further statutory references are to the Penal Code.
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front door and window had been broken. He discovered that a computer,
documents, jewelry, and money were missing.
Receiving Stolen Property
On August 29, 2011, Jose Linares, who was 15 years old at the time of trial,
went out to eat with his family. They left their home in Los Angeles around 8:00
p.m., locking the doors and windows, and returned around 9:00 p.m. When they
returned, they found the home in disarray and saw that the security bars on his
bedroom window were open. The family’s Sony PlayStation Portable (PSP) had
been stolen.
Los Angeles Police Department Detective Christopher Marsden arrested
appellant on October 27, 2011. When Detective Marsden searched appellant’s car,
he found approximately 35 pawn shop receipts in the trunk of the car. Eleven of
the receipts were from Charles Jewelry. One pawn receipt showed that appellant
pawned a Sony PSP on August 31, 2011. Detective Marsden went to the pawn
shop, located the Sony PSP, and discovered that it contained a photograph of
Linares, depicting him holding a diploma from his school.
Defense Evidence
Appellant presented no evidence.
Procedural Background
Appellant was charged in an amended information with three counts of first
degree residential burglary and one count of receiving stolen property. It was
further alleged that appellant had served seven prior prison terms pursuant to
section 667.5, subdivision (b), and that he had suffered one strike for purposes of
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the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior
conviction of a serious felony under section 667, subdivision (a)(1).
The jury found appellant guilty on all four counts. Appellant admitted the
prior strike, and the prosecution chose not to proceed on the remaining priors. The
court granted appellant’s Romero motion (People v. Superior Court (Romero)
(1996) 13 Cal. 4th 497) and struck the strike as to two burglary counts and the
receiving stolen property count (counts 2, 3, and 4), but denied it as to the
remaining burglary count (count 1). The court sentenced appellant to a total of 16
years 4 months.
DISCUSSION
Appellant contends that the evidence is insufficient to sustain the receipt of
stolen property count. He also contends that insufficient evidence supports the
finding of his ability to pay $110 in attorney fees.
I. Stolen Property Count
“On appeal, an appellate court deciding whether sufficient evidence supports
a verdict must determine whether the record contains substantial evidence – which
we repeatedly have described as evidence that is reasonable, credible, and of solid
value – from which a reasonable jury could find the accused guilty beyond a
reasonable doubt. [Citation.]” (People v. Hovarter (2008) 44 Cal. 4th 983, 996-
997, italics deleted.)
“We resolve all conflicts in the evidence and questions of credibility in favor
of the verdict, and indulge every reasonable inference the jury could draw from the
evidence. [Citation.] This standard applies whether direct or circumstantial
evidence is involved. [Citation.] It also applies when determining whether the
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evidence is sufficient to sustain a jury finding on a gang enhancement. [Citations.]
Reversal is unwarranted unless “‘upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].”’ [Citation.]” (People v. Mendez
(2010) 188 Cal. App. 4th 47, 56.)
“Under section 496, subdivision (a), the elements of receiving stolen
property are (1) stolen property; (2) knowledge that the property was stolen; and
(3) possession of the stolen property. [Citation.]” (People v. King (2000) 81
Cal. App. 4th 472, 476, fn. omitted.) Appellant contends that the evidence is
insufficient to support the finding that he knew the property was stolen. We
disagree.
“‘[P]roof of knowing possession by a defendant of recently stolen property
raises a strong inference of the other element of the crime: the defendant’s
knowledge of the tainted nature of the property. This inference is so substantial
that only “slight” additional corroborating evidence need be adduced in order to
permit a finding of guilty. [Citation.]’ [Citation.]” (People v. Reyes (1997) 52
Cal. App. 4th 975, 985 (Reyes).)
There is no dispute that Linares’ Sony PSP was stolen and that appellant
pawned it only two days later. Thus, only slight additional corroborating evidence
is needed to support the conviction. (Reyes, supra, 52 Cal.App.4th at pp. 984-
985.)
Viewing the evidence in the light most favorable to the judgment and
drawing all reasonable inferences in favor of the conviction, we have no trouble
concluding that the evidence is sufficient to sustain the finding that appellant knew
the Sony PSP was stolen. The Sony PSP had a photograph of Linares holding a
middle school diploma. In addition, there were approximately 35 pawn shop
receipts in appellant’s car when he was arrested, including the receipt for Linares’
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Sony PSP. Finally, evidence appellant had committed burglaries on three separate
occasions tended to prove that he knew that the Sony PSP he pawned was stolen.
Appellant argues that the evidence supporting the burglary counts was not
cross-admissible as to the receiving stolen property count. His argument, however,
consists of only one sentence, and he does not support his claim with any legal
analysis or citation to the record. It is therefore forfeited. “‘[I]t is appellant’s
burden to affirmatively show error. [Citation.] To demonstrate error, appellant
must present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error. [Citations.]’
[Citation.] ‘Mere suggestions of error without supporting argument or authority
other than general abstract principles do not properly present grounds for appellate
review.’ [Citation.]” (Multani v. Witkin & Neal (2013) 215 Cal. App. 4th 1428,
1457.)
II. Ability to Pay Attorney Fees
At sentencing, the trial court imposed a $110 attorney fee on appellant,
pursuant to section 987.8. Under section 987.8, the court must make a
determination, either express or implied, that the defendant has the ability to pay
defense costs. (People v. Prescott (2013) 213 Cal. App. 4th 1473, 1476; People v.
Verduzco (2012) 210 Cal. App. 4th 1406, 1421.) Appellant contends that the
imposition of the fee was erroneous because the trial court did not hold a hearing
or make an explicit finding regarding his ability to pay.
Although appellant correctly points out that the record does not indicate that
the trial court made any findings regarding his financial ability, he did not raise this
contention below. Respondent concedes in its brief that appellant did not forfeit
his challenge to the sufficiency of the evidence to support his ability to pay
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attorney fee, relying on People v. Pacheco (2010) 187 Cal. App. 4th 1392(Pacheco). However, after briefing was complete in this case, the California
Supreme Court disapproved Pacheco in People v. McCullough (2013) 56 Cal. 4th
589 (McCullough).
In Pacheco, the defendant claimed on appeal that the trial court erroneously
imposed several fees, including an attorney fee under section 987.8, without
determining his ability to pay the fees. Although he had not objected to the
imposition of the fees in the trial court, the appellate court held that he was not
required to do so in order to assert his claim on appeal. (Pacheco, supra, 187
Cal.App.4th at p. 1397.) Because the trial court did not make a finding, either
express or implied, about the defendant’s ability to pay the fee, the court held that
the order directing payment of attorney fees was erroneous. (Id. at pp. 1398-1399.)
In McCullough, the California Supreme Court disapproved Pacheco and
held that a defendant who failed to object to the imposition of a booking fee under
Government Code section 29550.2 had forfeited his right to challenge it on appeal.
(McCullough, supra, 56 Cal.4th at pp. 591, 599.) Similar to section 987.8,
Government Code section 29550.2, subdivision (a) requires the court to determine
a defendant’s ability to pay before ordering payment. (Id. at pp. 592-593, 599.)
The court reasoned that the determination of a defendant’s ability to pay a fee was
a factual issue that required the development of the record below. (Id. at p. 597.)
A defendant who failed to challenge the sufficiency of the evidence when the fee
was imposed accordingly did not have the right to raise it on appeal. (Ibid.)
Similar to the imposition of a booking fee at issue in McCullough, the
imposition of an attorney fee requires factual determinations regarding the
defendant’s ability to pay. We therefore rely on McCullough to conclude that
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appellant forfeited his right to challenge the fee by failing to raise it at the time the
fee was imposed.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
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