People v. Fernandez CA1/3

Filed 5/6/21 P. v. Fernandez CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A160192
v.
CHRISTOPHER FERNANDEZ, (Napa County
Defendant and Appellant. Super. Ct. No. 18CR001517)
Defendant Christopher Fernandez appeals from a judgment after a jury
found him guilty of various counts of conspiracy, theft, burglary, vandalism,
and identity theft. He contends that (1) there was insufficient evidence and
improper jury instructions on his three separate convictions for conspiracy;
(2) there was insufficient evidence to support even one conviction for
conspiracy; (3) there was insufficient evidence and improper jury instructions
on his conviction for felony grand theft; (4) the trial court abused its
discretion in denying his motion for mistrial based on a detective’s unsolicited
testimony during cross-examination that defendant had refused to consent to
a search of his phone; (5) the trial court abused its discretion in allowing the
prosecutor to improperly refresh the recollection of a witness; and (6) the
sentencing hearing minute order contains a clerical error regarding his
misdemeanor petty theft conviction.
1
We agree, and the Attorney General concedes, that there was
insufficient evidence to support defendant’s three separate conspiracy
convictions. We also agree that there was insufficient evidence to establish
the $950 threshold for defendant’s felony grand theft conviction. Accordingly,
we modify the judgment to strike two of defendant’s conspiracy convictions
and to reduce his felony grand theft conviction to misdemeanor petty theft.
We remand for resentencing on the misdemeanor petty theft conviction, and
also for sentencing on defendant’s two other misdemeanor convictions as the
trial court failed to sentence defendant on these convictions. We affirm the
judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with three counts of felony conspiracy (Pen.
Code, § 182(a)(1)) (counts 1, 4, and 6);1 two counts of felony grand theft
(§ 487(a)) (counts 2–3); one count of felony vandalism (§ 594(b)(1)) (count 5);
five counts of felony second degree burglary (§§ 459, 460) (counts 7–11); and
one count of misdemeanor identity theft (§ 530.5(c)) (count 12). The
information alleged that, on April 6, 2018, defendant and an unknown co-
conspirator had driven to the victim business, Paradise Pools, Inc. (Paradise
Pools), to preview its property. It further alleged that, on April 7 and April 8,
2018, defendant broke into several Paradise Pool trucks and stole tools and
other items.
The People filed an amended information, which contained the same
counts but alleged that the second degree burglaries were committed by
entering Paradise Pools’ commercial vehicles, not its building. During the
trial, the People moved to reduce the count of grand theft occurring on April
1Unless otherwise indicated, all further section references will be to
the Penal Code.
2
8, 2018 (count 3) to a misdemeanor, and to dismiss one of the burglary counts
(count 11).
A. Trial Testimony
The following is a brief summary of some of the trial evidence, which
we set out to provide context to the claims raised on appeal.
Neftali Sanchez, a service manager at Paradise Pools, testified that he
walked out to the office parking lot on the evening of April 6, 2018, and
noticed an older blue pickup truck entering the lot. The truck’s headlights
were off. He started his own car and then followed the truck to the parking
lot entrance, where he wrote down its license plate number. Neftali Sanchez
could see that there were two individuals in the truck, and that the
passenger was “Caucasian” with a “big build” and a goatee. He was unable,
however, to positively identify defendant as the passenger in a subsequent
photograph line-up. At trial, Neftali Sanchez testified that defendant
“possibly look[ed] familiar” to him.
Randy Willems, the owner of Paradise Pools, testified that he arrived to
the office on April 7, 2018 and learned that several trucks had been broken
into overnight. Tools, gas cards, and paperwork were missing from the
trucks. The surveillance video footage from the parking lot showed two
individuals “breaking the windows, and getting into the vehicles.” Willems
could not identify the faces from the footage, and could not tell whether one of
the individuals was defendant.
Willems testified that by the next morning, April 8, 2018, more trucks
had been broken into and more tools had been taken. He subsequently
discovered that a hole had been cut in the fence of a cemetery adjacent to
Paradise Pools’ parking lot. This area was out of view from the surveillance
cameras.
3
Willems asked his employees to make lists of the tools and other items
that were taken from the trucks. No one documented the condition of the
tools. Willems testified that some of the tools were barely used, whereas
some of the tools had been in use for five or six years.
The office manager Lauren Bishofberger typed up inventories of the
missing items provided by these employees, one for each of the six trucks that
had been broken into. She went online, to websites like Home Depot and
Amazon, to identify the prices of each item. Bishofberger testified that she
performed this internet research because she did not have any experience or
training in the appraisal of tools. These inventories were received into
evidence.
Officer Jarett Haggmark testified regarding the police report of the
incident. The report identified four Paradise Pools trucks with items that
had been taken on April 7, 2018. Paradise Pools had previously assigned
numbers to these trucks: 13, 19, 25, and 26. The inventory for the missing
items from truck 13 totaled $1,165.09. The inventory for the missing items
from truck 19 totaled $2,106.35. The inventory for the missing items from
truck 26 totaled $2,269.44. The inventory for truck 25 listed one tool but did
not identify any price. The inventories included tools like drills,
screwdrivers, wrenches, tool bags, and extension cords. Officer Haggmark
also testified that he ran the license plate number provided by Neftali
Sanchez. The truck was registered to defendant at an address in Vacaville.
Marcy Wilkerson owned the house at 124 Dover Way in Vacaville.
Wilkerson testified that she permitted defendant to live with her for about a
year in 2018, in exchange for doing some work on the house. She testified
that there were a number of tools in the garage, but most of them were not
hers.
4
Detective Garrett Wade testified that he conducted surveillance at 124
Dover Way and found that the truck registered to defendant was routinely
parked in the driveway. He also observed the truck being driven by
defendant. A search warrant for 124 Dover Way was obtained and executed
while neither Wilkerson nor defendant was at the property.
Detective Wade testified that multiple tools were located in the garage,
along with a Paradise Pools truck registration card. He testified that the
garage looked like “a homeowner’s Home Depot.” The truck registered to
defendant was also searched. It contained a Paradise Pools gas card,
defendant’s work I.D. card, a ski or Halloween mask, two-way radios with a
headset, binoculars, a scanner, a box of latex gloves, an air jack, and a
reciprocating saw.
B. Hugo Sanchez Testimony and Objection
Hugo Sanchez, an assistant manager at Paradise Pools, testified that
both tools and an iPad were taken from truck 26. Upon realizing that the
iPad was missing, an application was used to search for the device and it
“pinged” at a location in the city of Suisun. When asked on direct
examination if he remembered a street, he responded: “If I’m not mistaken,
it’s -- I want to say it’s Grove.” The prosecutor then stated that she would
show Hugo Sanchez a document to refresh his recollection. Defense counsel
objected that “[h]e didn’t really say he didn’t remember” the location. The
trial court asked the prosecutor: “Are you asking about the exact location?”
The prosecutor responded: “Yes.” The trial court overruled the objection, as
Hugo Sanchez “couldn’t provide the exact, except [sic] the street.” Hugo
Sanchez then reviewed the document, and testified that the application
pinged on 119 Dover Way in the city of Vacaville.
5
Ramon Espinosa, a construction manager at Paradise Pools, then
testified that his phone was used to ping the missing iPad and that he took a
screenshot of the location. It was located on Dover in Vacaville.
Outside the presence of the jury, defense counsel argued that the
refreshing of Hugo Sanchez’s recollection was improper. The trial court
responded: “I think we need to be careful when we are refreshing
recollection.” It continued: “We started slipping and sliding with some of the
other witnesses and we corrected ourselves, but I don’t have a copy of the
police report in front of me, so when Hugo Sanchez was testifying, I thought
he was simply being asked to provide numerical address for the Grove Street
address. I didn’t realize he was going to be presented with a document which
then led him to testify oh, it’s not even Grove Street, it’s Dover Street. And
it’s not even the say [sic] same city testified to, it’s Vacaville.” The trial court,
however, found that the issue was “not particularly prejudicial to the
defense,” as another witness then testified “that his phone was used to assist
with the pinging location of the iPad, and he provided the address that was
ultimately testified to by Hugo Sanchez.”
C. Detective Wade Testimony and Motion for Mistrial
On direct examination, Detective Wade testified that he had obtained a
search warrant for defendant’s cell phone. He testified that cell phones can
be helpful in a burglary case because perpetrators will use it to “set up” the
theft and take photographs of the stolen items to sell them. He testified that
he was unable to access defendant’s cell phone because it was locked by a
passcode.
On cross-examination, Detective Wade testified that a cell phone can
contain G.P.S. location data that can exonerate or prove the guilt of an
individual. Defense counsel asked if there was information from a cell phone
6
that could be retrieved from the phone carrier without accessing the device
itself. Detective Wade responded that he did not know the carrier of
defendant’s phone or the phone number. Defense counsel then asked if 911
can be dialed from a phone even if it is locked. Detective Wade responded: “I
guess I’ll do that next time too.” Defense counsel retorted: “Okay. Next
time.” With no question pending, Detective Wade then stated: “But your
client could have given the passcode like I asked.”
Defense counsel objected and moved to strike the statement. The trial
court struck the answer and stated: “At this point I’m going to ask the jury to
disregard the response, please.” The trial court excused the jury for a recess.
During the colloquy with counsel, it was revealed that, during the trial, the
prosecutor had asked defense counsel if defendant would consent to a search
of his phone.
Defense counsel promptly moved for a mistrial. He argued that
Detective Wade’s statement violated defendant’s constitutional rights, and
requested that the trial court provide the following additional curative
instruction: “You heard testimony yesterday that Detective Wade asked Mr.
Fernandez for the passcode to his phone. That testimony was not truthful.
Mr. Fernandez was never asked for his passcode. You are further instructed
to disregard that testimony and not consider it for any purpose.”
The motion for mistrial was denied. The trial court framed the
question as a “right against self-incrimination issue.” It explained: “The
problem I have with this case is certainly if [the prosecutor] had opened the
door with the officer in I [sic] her line of questioning it would be to me a clear
violation of Doyle and Griffin. What we have here is we have defense counsel
asking questions about a cell phone where he clearly knew the People were
getting ready to either break into the phone by way of new technology and
7
requesting a search warrant.” It continued: “I do think that as a defense
attorney, as I stated before, you want to be a zealous advocate, but you also
have to know when you’re walking onto a minefield, and he was calling into
question the officer’s capability as a detective, whether or not he did a
thorough investigation, giving him examples of how he could obtain
information related to the phone so that he could actually gain electronic
evidence from the phone, including calling 9-1-1 to be able to identify the
telephone number[.]”
The trial court concluded that “either the defense invited error, or there
is no error at all,” given that the trial court admonished the jury not to
consider the statement and the People “did nothing to elicit the information.”
The trial court declined the additional curative instruction requested by
defense counsel, stating that “it’s only going to make matters worse” and
noting the trial court was “not prepared to say that we had an officer here
who lied, because I don’t think that’s what happened.”
D. Jury Instructions and Closing Arguments
At the conclusion of the evidence, the jury instructions included the
standard CALCRIM No. 104 instruction, stating in relevant part: “If I order
testimony stricken from the record, you must disregard it and must not
consider that testimony for any purpose.” The same instruction was also
provided to the jury before the presentation of evidence.
The jury instructions also included an instruction based on CALCRIM
No. 108 for grand and petty theft. It stated that “[t]he defendant committed
grand theft if the value of the property is more than $950” and that “[t]he
value of the property is the fair market value of the property.” It defined
“fair market value” as “the highest price the property would reasonably have
8
been sold for in the open market at the time of and in the general location of
the theft.”
During closing arguments, the prosecutor argued that for felony grand
theft on count 2, the amount of the stolen items totaled $5,540. She argued:
“If you discount that by 80 percent, remember, you heard that these tools
were anywhere from practically brand new, used maybe once, or twice, to five
or six years old. If you take all of them and discount them 80 percent, that’s
still over the 950.” She continued: “So I think the evidence has shown
sufficiently that those tools stolen on April 7th in Count 2 are worth well
above the $950 threshold for the felony charge.”
E. Verdict and Sentencing
The jury found defendant guilty of three counts of felony conspiracy
(counts 1, 4, and 6); felony grand theft (count 2); misdemeanor petty theft
(count 3); felony vandalism (count 5); two counts of felony second degree
burglary (counts 7 and 9); and one count of misdemeanor identity theft (count
12).
Defendant was sentenced to the aggravated term of three years on
count 7 (second degree burglary) pursuant to section 1170, subdivision
(h)(5)(b). The trial court stated: “as to counts Three and Twelve I’m simply
going to deny probation. Those are the two misdemeanor charges.” It
continued: “As to the remaining counts where we had convictions the court
will impose the low term of 16 months but will stay pursuant to Penal Code
section 654.” The trial court ordered defendant to serve one year in local
custody and two years on mandatory supervision.
Defendant timely appealed.
9
DISCUSSION
Defendant raises six primary arguments in this appeal. First, he
argues that there was insufficient evidence to support his three separate
convictions for conspiracy, and that the jury instructions allowed the jury to
convict him without proof beyond a reasonable doubt of all the elements of
each conspiracy. Second, he argues that there was insufficient evidence to
support any conviction for conspiracy. Third, he argues that there was
insufficient evidence to support his conviction for felony grand theft, and that
the jury instructions allowed the jury to convict him without proof beyond a
reasonable doubt that the value of the stolen property exceeded $950.
Fourth, he argues that the trial court abused its discretion in denying his
motion for mistrial based on Detective Wade’s statement that defendant had
refused to provide his phone passcode. Fifth, he argues that the trial court
abused its discretion in allowing the prosecutor to improperly refresh the
recollection of Hugo Sanchez. Sixth, he argues that there is a clerical error in
the sentencing hearing minute order regarding his misdemeanor petty theft
conviction that should be corrected.
I. SUFFICIENCY OF EVIDENCE
We begin with defendant’s arguments challenging the sufficiency of
evidence to support (1) his multiple conspiracy convictions; (2) any single
conspiracy conviction; and (3) his felony grand theft conviction. To evaluate
these claims, we review the whole record to determine whether there is
“ ‘substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) We review the evidence “ ‘in the light
most favorable to the prosecution and presume in support of the judgment
10
the existence of every fact the jury could reasonably have deduced from the
evidence.’ ” (Ibid.) Reversal on this ground is unwarranted unless “ ‘it
appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” the jury’s verdict.’ ” (Ibid.)
A. Multiple Conspiracy Convictions
Defendant argues that there was insufficient evidence to support his
three separate convictions for conspiracy (counts 1, 4, and 6). Specifically, he
argues that there was no evidence that he entered into three separate
agreements to commit the various crimes against Paradise Pools. The
Attorney General concedes the merit of this argument. We agree.
“It is well-settled that the essence of the crime of conspiracy is the
agreement, and thus it is the number of the agreements (not the number of
the victims or number of statutes violated) that determine the number of the
conspiracies.” (People v. Meneses (2008) 165 Cal.App.4th 1648, 1669
(Meneses).) “The gist of the crime of conspiracy . . . is the agreement or
confederation of the conspirators to commit one or more unlawful acts[.]”
(Braverman v. United States (1942) 317 U.S. 49, 53.)
“ ‘Where two or more persons agree to commit a number of criminal
acts, the test of whether a single conspiracy has been formed is whether the
acts “were tied together as stages in the formation of a larger all-inclusive
combination, all directed to achieving a single unlawful end or result.” ’ ”
(Meneses, supra, 165 Cal.App.4th at p. 1672.) “ ‘Relevant factors to consider
in determining this issue include whether the crimes involved the same
motives, were to occur in the same time and place and by the same means,’
and targeted a single or multiple victims.” (Ibid.)
Here, there is no evidence that defendant entered into multiple
agreements to commit the crimes of theft, vandalism, and burglary against
11
Paradise Pools, or that there were differing motives behind these various
crimes. All of the crimes targeted the same victim and occurred in the same
parking lot within a two-day window. We thus conclude that the evidence
was insufficient to support defendant’s three separate convictions for
conspiracy.
While both parties agree that two of the conspiracy convictions should
be stricken, they disagree on the procedure: defendant requests that this
court strike his convictions for conspiracy to commit vandalism (count 4) and
conspiracy to commit burglary (count 6), while the Attorney General suggests
that the trial court should determine on remand which conspiracy conviction
should remain.
An appellate court has broad discretion to reverse, affirm, or modify a
judgment “as may be just under the circumstances.” (§ 1260.) In People v.
Patrick (1981) 126 Cal.App.3d 952, 965, the appellate court determined there
was instructional error that allowed the jury to convict the defendant of two
conspiracy offenses “based on exactly the same conduct.” It exercised its
discretion to affirm one of the conspiracy convictions, but strike the other.
(Id. at p. 969.) Accordingly, we will exercise our discretion to modify the
judgment and strike defendant’s convictions for conspiracy to commit
vandalism (count 4) and conspiracy to commit burglary (count 6).2
B. Remaining Conspiracy Conviction
Even after striking two of his conspiracy convictions, defendant argues
that his remaining conviction for conspiracy to commit theft (count 1) should
2Given our conclusion, we need not address defendant’s additional
argument that instructional error allowed the jury to convict defendant on
multiple counts of conspiracy without proof beyond a reasonable doubt of all
the elements of each conspiracy.
12
also be reversed because there was insufficient evidence to establish the
elements of conspiracy.
“ ‘A conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to commit an
offense, as well as the specific intent to commit the elements of that offense,
together with proof of the commission of an overt act “by one or more of the
parties to such agreement” in furtherance of the conspiracy.’ ” (People v.
Jurado (2006) 38 Cal.4th 72, 120.)
An express agreement is not required. (People v. Johnson (2013) 57
Cal.4th 250, 264.) “Evidence is sufficient to prove a conspiracy to commit a
crime ‘if it supports an inference that the parties positively or tacitly came to
a mutual understanding to commit a crime.’ ” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1135 (Rodrigues).) Moreover, it is “seldom possible for the
prosecution to offer direct evidence of an agreement to commit a crime” as the
agreement is “usually made in secrecy.” (People v. Chavez (1962) 208
Cal.App.2d 248, 253 (Chavez).) “ ‘The existence of a conspiracy may be
inferred from the conduct, relationship, interests, and activities of the alleged
conspirators before and during the alleged conspiracy.’ ” (Rodrigues, supra, 8
Cal.4th at p. 1135.) “The conspiracy must be inferred by the trier of fact from
all the circumstances that are proven, and if the inference is a reasonable one
it will not be disturbed on appeal.” (Chavez, supra, 208 Cal.App.2d at p. 253.)
“Other than the agreement, the only act required is an overt act by any
of the conspirators, not necessarily the defendant, and that overt act need not
itself be criminal.” (People v. Smith (2014) 60 Cal.4th 603, 616.) In other
words, it is not necessary that a defendant be “ ‘present and personally
participate with his co-conspirators in all or in any of the overt acts.’ ”
(People v. Morante (1999) 20 Cal.4th 403, 417.) An overt act is defined as
13
“ ‘an outward act done in pursuance of the crime and in manifestation of an
intent or design, looking toward the accomplishment of the crime.’ ” (People
v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) A single overt act can satisfy this
element of conspiracy. (People v. Ware (2020) 52 Cal.App.5th 919, 939.)
Here, Neftali Sanchez testified that the blue pickup truck registered to
defendant entered the Paradise Pools parking lot on the evening before the
crimes occurred with its headlights off. He testified that there were two
individuals in the truck, and that the passenger was “Caucasian” with a “big
build” and a goatee. Even though Neftali Sanchez could not positively
identify defendant as the passenger in a photo lineup, this evidence was
sufficient to establish the “overt act” element as it proved that at least
defendant’s co-conspirator acted in furtherance of the thefts by driving the
truck and previewing the property on April 6, 2018.
The evidence also showed that various tools and a Paradise Pools truck
registration card were located in the garage where defendant resided. The
truck registered to defendant contained a Paradise Pools gas card,
defendant’s work I.D. card, a mask, two-way radios with a headset,
binoculars, a scanner, a box of latex gloves, an air jack, and a reciprocating
saw. This evidence, along with the preview of the property shortly before the
crimes occurred, supports the hypothesis that defendant had agreed to
commit the thefts against Paradise Pools on April 7 and April 8, 2018.
In sum, we conclude that there was sufficient evidence to support a
reasonable determination by the jury that the elements of conspiracy to
commit theft (count 1) were established.
C. Felony Grand Theft Conviction
Defendant argues that there was insufficient evidence to support his
conviction for felony grand theft (count 2). Specifically, he contends that
14
there was no evidence as to the fair market value of the tools and other items
stolen on April 7, 2018, and thus no evidence to establish the $950 threshold
for the felony conviction. We agree.
“In determining the value of the property obtained, for the purposes of
[theft offenses], the reasonable and fair market value shall be the test[.]”
(§484, subd. (a).) The fair market value of an item is the “highest price”
obtainable in the marketplace, as between “a willing buyer and a willing
seller, neither of whom is forced to act.” (People v. Pena (1977) 68 Cal.App.3d
100, 104.)
Here, no evidence was presented regarding the fair market value of the
tools and other items stolen on April 7, 2018. Willems testified that none of
the tools were new, but instead ranged from “barely used” to five or six years
old. The only evidence as to value was Bishofberger’s online research of the
prices for new tools to replace the used tools that were stolen. There was no
evidence about how to properly discount those prices to reach the fair market
value of the used tools. Instead, the prosecutor argued in closing: “If you
take all of them [the items stolen on April 7th totaling $5,540] and discount
them 80 percent, that’s still over the 950.” The prosecutor’s calculation of the
maximum discount that would still satisfy the $950 threshold for felony
grand theft is not evidence of fair market value.
The Attorney General makes two arguments to the contrary, neither of
which we find persuasive. First, he argues that Bishofberger’s pricing
constituted sufficient evidence because there are circumstances in which the
replacement price of an item may be used in lieu of its fair market value. In
People v. Renfro (1967) 250 Cal.App.2d 921, 924, for example, the defendant
was convicted of stealing cable used only by telephone companies, purchased
from one of the few manufacturers of such cables, and made to particular
15
specifications for the company’s use. The appellate court concluded that in
such circumstances, where the stolen property has “a unique or restricted use
and an extremely limited market, the actual or replacement cost to the one
from whom it was stolen is its fair market value.” (Ibid.) Unlike Renfro,
however, the stools stolen here—including drills, screwdrivers, wrenches, tool
bags, and extension cords—are not particularly “unique” or involve an
“extremely limited” market. (Ibid.) This is not a circumstance where the fair
market value should be equated with the replacement value.
Second, the Attorney General argues that the jurors could have used
their “common sense” to draw inferences about the fair market value of the
stolen items. In People v. Ortiz (2012) 208 Cal.App.4th 1354, 1359, for
example, the defendants were convicted of carjacking and kidnapping two
individuals in a two-year-old BMW. The appellate court concluded that the
convictions were supported by substantial evidence, as the jury could
reasonably infer that the defendants took the vehicle to pay off a large drug
debt, and could rely on their common knowledge that such a vehicle would
have substantial market value. (Id. at pp. 1365–1366.) Here, we are not
convinced that the jurors possessed sufficient common knowledge of used
tools, whose conditions were unknown, to be able to reasonably determine
their fair market value.
In sum, we conclude that there was insufficient evidence to support the
jury’s finding that the fair market value of the items stolen on April 7, 2018
exceeded $950.3 Upon reaching such a conclusion, an appellate court is
3 Given our conclusion, we need not address defendant’s additional
arguments regarding the evidence and prosecutor argument on the value of
the tools, or that instructional error allowed to the jury to convict defendant
without proof beyond a reasonable doubt that the value of the stolen property
exceeded $950.
16
“authorized to reduce the degree of the [felony grand theft] offense and fix the
same only as petty theft, and thus avoid the necessity of a retrial.” (People v.
Simpson (1938) 26 Cal.App.2d 223, 229–230.) Accordingly, we modify the
judgment to reduce defendant’s conviction on count 2 from felony grand theft
to misdemeanor petty theft, and remand for resentencing on this count.
II. MOTION FOR MISTRIAL
Defendant argues that the trial court abused its discretion in denying
his motion for mistrial based on Detective Wade’s statement that defendant
had refused to provide his phone passcode. He contends that the statement
violated his constitutional rights, and that the trial court should have
provided the additional curative instruction he requested. The Attorney
General acknowledges that the spontaneous statement was improper. He
argues, however, that the statement did not involve constitutional error and
does not warrant a mistrial, as the trial court correctly struck the statement
and admonished the jury to disregard it.
Trial courts are “ ‘vested with considerable discretion in ruling on
mistrial motions.’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 986.) A mistrial
should be granted if the trial court is “ ‘apprised of prejudice that it judges
incurable by admonition or instruction.’ ” (Ibid.) “ ‘Juries often hear
unsolicited and inadmissible comments and in order for trials to proceed
without constant mistrial, it is axiomatic the prejudicial effect of these
comments may be corrected by judicial admonishment; absent evidence to the
contrary the error is deemed cured.’ ” (People v. McNally (2015) 236
Cal.App.4th 1419, 1428–1429 (McNally).) We review a ruling on a motion for
a mistrial “for an abuse of discretion,” recognizing that a motion for mistrial
should be granted only when “ ‘ “ ‘a [defendant’s] chances of receiving a fair
trial have been irreparably damaged’ ” ’ ” (People v. Collins (2010) 49 Cal.4th
17175, 198 (Collins)) and where “ ‘ “the improper subject matter is of such a
character that its effect . . . cannot be removed by the court’s admonitions” ’ ”
(McNally, supra, 236 Cal.App.4th at p. 1429).
Defendant contends that his rights under the Fifth and Fourteenth
Amendment of the United States Constitution were violated by Detective
Wade’s statement. He relies on People v. Keener (1983) 148 Cal.App.3d 73(Keener) and People v. Wood (2002) 103 Cal.App.4th 803 (Wood) to support
this position. In Keener, the trial court permitted the prosecution to
introduce evidence showing defendant had refused to leave his apartment
upon request of a SWAT team. (Keener, supra, 148 Cal.App.3d at p. 78.)
Four SWAT officers then testified “to what can only be characterized as a
siege of defendant’s apartment,” including “how they tried to coax Keener out
of the apartment” and how he responded. (Ibid.) “Evidence of the siege was
offered to show a consciousness of guilt; i.e., if defendant was not guilty he
would have immediately surrendered.” (Ibid.) Keener concluded that
admission of such evidence violated defendant’s privilege to be free from
comment upon the assertion of a constitutional right. (Ibid.)
In Wood, a police officer testified that the defendant had refused entry
onto his property when asked by the officer. (Wood, supra, 103 Cal.App.4th
at p. 807.) The testimony was given after the trial court overruled defense
counsel’s objections under the Fifth and Fourteenth Amendment. (Ibid.)
Wood concluded that the objections should have been sustained because
defendant’s invocation of his constitutional rights was “improperly being used
for the purpose of showing he had something to hide, or, in other words,
demonstrating his consciousness of his guilt.” (Id. at p. 809.) “In effect, the
testimony punished defendant for asserting his right to have the officer
obtain a warrant.” (Ibid.)
18
We are not convinced that the facts here give rise to the constitutional
error identified in Keener and Wood. As the trial court explained, Detective
Wade’s statement regarding defendant’s refusal to provide his passcode was
made during cross-examination. While Detective Wade had testified on direct
that defendant’s cell phone was locked, the prosecutor did not elicit any
testimony regarding a request that defendant provide his passcode, or any
refusal of such a request. On cross-examination, the line of questioning
leading up to Detective Wade’s statement made clear that defense counsel
was attacking the thoroughness of the investigation and Detective Wade’s
competency, by providing examples of how Detective Wade could have
obtained information from the phone without having the passcode. These
questions regarding access to defendant’s phone were not asked for the
purpose of showing defendant’s consciousness of guilt.
Moreover, we agree with the trial court that any error arising from
Detective Wade’s statement was harmless. Given our rejection of defendant’s
constitutional error argument, the denial of defendant’s mistrial motion is
subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d
818 (Watson). (People v. Welch (1999) 20 Cal.4th 701, 749–750.) Under this
standard, we must ask whether it is “reasonably probable that the jury was
influenced by such evidence to defendant’s prejudice, or that the admission of
such evidence affected the verdict.” (Watson, supra, 46 Cal.2d at p. 837.)
As a preliminary matter, we conclude it was not “reasonably probable”
that the jury was affected by Detective Wade’s statement to defendant’s
prejudice. (Watson, supra, 46 Cal.2d at p. 837.) Detective Wade testified that
a phone can contain data that may either exonerate or prove the guilt of an
individual. Thus, Detective Wade’s comment did not necessarily suggest
defendant’s consciousness of guilt. (See Wood, supra, 103 Cal.App.4th at p.
19
809.) More importantly, the comment was not admitted into evidence. “It is
the general rule that when an unexpected answer of a witness, which could
not be anticipated by objection to the question, contains inadmissible and
prejudicial matter, a motion to strike it out is the proper remedy.” (People v.
Glass (1954) 127 Cal.App.2d 751, 753.) The trial court granted defense
counsel’s motion to strike Detective Wade’s statement, and admonished the
jury to disregard it.
Finally, defendant argues that the trial court abused its discretion in
declining to provide an additional curative instruction. In his motion for
mistrial, defendant requested that the trial court further instruct the jury
that Detective Wade’s testimony “was not truthful” and repeat its instruction
that the testimony should be disregarded. Defendant offers no authority (in
his underlying motion or on appeal) to support this argument, and does not
address the conflict between his proposed additional instruction and the
instruction that the jury “alone, must judge the credibility or believability of
the witnesses.” We thus reject the argument.
In sum, we conclude that the trial court did not abuse its discretion in
denying defendant’s motion for mistrial.
III. EVIDENTIARY RULING ON REFRESHING RECOLLECTION
Defendant argues that the trial court abused its discretion in
overruling defense counsel’s objection and allowing the prosecutor to
improperly refresh the recollection of Hugo Sanchez as to the location of the
iPad ping using a police report that contained hearsay. We review the trial
court’s evidentiary ruling for an abuse of discretion. (People v. Waidla (2000)
22 Cal.4th 690, 717.)
“A witness may refer to hearsay to refresh his recollection; however,
before doing so the witness must testify he cannot remember the fact sought
20
to be elicited.” (People v. Lee (1990) 219 Cal.App.3d 829, 840.) When asked if
he could remember the street where the iPad pinged, Hugo Sanchez did not
testify that he could not remember this fact. Instead, he responded: “If I’m
not mistaken, it’s -- I want to say it’s Grove.” At this point in his testimony,
there was no basis to refresh his recollection with the police report and the
trial court erred in overruling defense counsel’s objection.
We conclude, however, that the error was harmless. Another witness,
Ramon Espinosa, testified that his phone was used to ping the missing iPad
and that he took a screenshot of the location. Espinosa testified that the ping
was located on Dover in Vacaville. In light of this additional testimony, it
was not “reasonably probable” that defendant would have obtained a more
favorable result absent the error. (Watson, supra, 46 Cal.2d at p. 837.) We
thus conclude that the trial court did not abuse its discretion in overruling
defense counsel’s objection.4
IV. Minute Order and Sentencing on Misdemeanors
Defendant argues that the minute order from the sentencing hearing
contains a clerical error, as the conviction on count 3 was for misdemeanor
petty theft, not felony grand theft. The Attorney General concedes that the
minute order incorrectly reflects both a felony offense and felony term (“Low
term of 16 months, stayed pursuant to 654 PC”) for count 3. He contends,
however, that the trial court made a sentencing error on both count 3 and
count 12 that requires remand, not just correction of the clerical error. He
argues that the trial court erred because it did not sentence defendant on
either of these misdemeanor convictions. We agree.
4Having concluded that defendant’s specific challenges to the
testimony of Detective Wade and Hugo Sanchez yield no prejudicial error, we
need not address defendant’s argument that his convictions should be
reversed for cumulative error.
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Section 12 provides: “The several sections of this Code which declare
certain crimes to be punishable as therein mentioned, devolve a duty upon
the Court authorized to pass sentence, to determine and impose the
punishment prescribed.” Pursuant to this duty, the trial court “ ‘must either
sentence the defendant or grant probation in a lawful manner; it has no other
discretion.’ ” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468 (Alford).)
The record from the sentencing hearing reflects that the trial court did
not fully discharge this duty. The trial court sentenced defendant on all
seven felony convictions, imposing a sentence of three years for count 7, and
imposing but staying a sentence of 16 months on the other six felony counts.
On the two misdemeanor convictions, however, the trial court stated it was
“simply going to deny probation.” Upon denial of probation, the trial court
should have sentenced defendant on these two counts. (See Alford, supra,
180 Cal.App.4th at p. 1468 [explaining that a trial court must sentence a
defendant on all counts, even if it ultimately stays the sentence].)
Accordingly, we remand for sentencing on defendant’s convictions for
misdemeanor petty theft (count 3) and identity theft (count 12).
DISPOSITION
The judgment is modified to strike defendant’s convictions for
conspiracy to commit vandalism (count 4) and conspiracy to commit burglary
(count 6), and to reduce defendant’s conviction for felony grand theft to
misdemeanor petty theft (count 2). We remand for resentencing on this
misdemeanor petty theft conviction (count 2), and also for sentencing on
defendant’s convictions for misdemeanor petty theft (count 3) and identity
theft (count 12). Following remand, the trial court is directed to prepare an
amended minute order that reflects the above modifications to the judgment,
as well as defendant’s resentencing on the misdemeanor petty theft
22
conviction (count 2), and defendant’s sentencing on the misdemeanor petty
theft conviction (count 3) and identity theft conviction (count 12). In all other
respects, the judgment is affirmed.
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_________________________
Petrou, Acting P.J.
WE CONCUR:
_________________________
Jackson, J.
_________________________
Wiseman, J.*
People v. Fernandez/A160192
*Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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