People v. Miller CA5

Filed 3/16/21 P. v. Miller CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078667
Plaintiff and Respondent,
(Super. Ct. No. F18905158)
v.
PARIS VALONTE MILLER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
Kristine Koo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Cameron E. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Meehan, J. and Snauffer, J.
Defendant Paris Valonte Miller stands convicted of residential burglary. On
appeal, she contends that the trial court erred in (1) admitting evidence that she gave a
false name when arrested for a different offense to prove consciousness of guilt, and
(2) imposing fines and fees without assessing her ability to pay. We affirm.
PROCEDURAL SUMMARY
On November 6, 2018,1 the Fresno County District Attorney filed an amended
information charging defendant with residential burglary (Pen. Code,2 §§ 459, 460,
subd. (a); count 1).
On November 14, a jury found defendant guilty on count 1.
On December 21, the trial court sentenced defendant to the middle term of
four years on count 1. The trial court also imposed a restitution fine (§ 1202.4) of
$1,200, a court operations fee (§ 1465.8) of $40, and a criminal conviction fee (Gov.
Code, § 70373) of $30.
On December 31, defendant filed a notice of appeal.
On August 23, 2019, defendant requested the trial court make a determination on
her ability to pay the fines and fees imposed pursuant to section 1237.2 and People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). On September 10, 2019, the trial court
denied the request, noting that defendant did not raise the issue at sentencing, did not
appear to have any physical or mental condition that would prevent employment, and
would have the opportunity to earn prison wages while incarcerated.
1 All further dates refer to the year 2018 unless otherwise stated.
2 All further statutory references are to the Penal Code unless otherwise stated.
2.
FACTUAL SUMMARY
The Prosecution’s Case
The Burglary
On March 6, at about 10:00 a.m., Oma G. returned to her apartment in Fresno to
find that it had been broken into. The wrought iron security screen door and the wooden
entry door had both been forced open and the interior was in disarray. Items were
scattered in the living area, her mattress had been removed from the bed, and her drawers
had been removed from the dressers. Items had been taken, including her CD player,
clothing, boots, purses, jewelry, coins, silverware, and two televisions. Pizza boxes, beer
cans, a soda can, Styrofoam boxes from the corner store, and a jacket that did not belong
to Oma were left behind. Oma called 911 to report the burglary.
Oma did not spend every night at her apartment. She was a caretaker for her 92-
year-old mother with dementia, so she often spent the night at her mother’s home. On
March 6, it had been about a week since she had been to her apartment.
Fresno Police Cadet Christian Hill responded to Oma’s 911 call. He recovered
latent fingerprints in Oma’s apartment from a mirror, a soda can, a tray that normally
contained dominoes, and a sliding glass door. The latent fingerprints yielded two results:
defendant and Vincent Butler. Oma was shown defendant’s photograph. Oma did not
know defendant and had not authorized her to enter her apartment.
Fresno Police Detective Ariana Kasparian worked on cases involving break-ins at
abandoned houses. She testified that abandoned houses do not typically have furniture, a
former owner’s personal property, or food left in the refrigerator. “They [are] usually
bare … [n]othing inside, just basically the bones of the house.”
3.
The False Name
Near the end of July, Fresno Police Officer Ying Steve Vang contacted defendant
at a big-box store in connection with a separate incident.3 During that contact, defendant
identified herself as Robin Smith. Vang contacted a dispatcher to verify defendant’s
identity and discovered that Robin Smith was deceased. Defendant then admitted her
true name. Vang then discovered that defendant had an outstanding warrant for the
burglary charged in this case and placed defendant under arrest.
Defendant’s Case
Defendant testified that in January, she had been homeless for about two years.
Defendant had previously been cited for trespassing while she was homeless. She and
other homeless people would occasionally enter an abandoned building, warehouse,
house, or apartment to sleep for the night. Defendant slept in abandoned buildings at
least 15 to 20 times. It was not unusual for some of those abandoned buildings to have
furniture and beds.
In early March, defendant went to Oma’s apartment at the invitation of Vincent
Deon. Vincent was known in the homeless community as the “bando king”4 because he
found abandoned buildings for homeless people to stay in. Defendant went to Oma’s
apartment for a place to sleep. She believed that the apartment was abandoned. When
she arrived at the apartment, Vincent and his girlfriend had already been there and the
place was “[t]hrashed[;] [there were] things laying around everywhere[,] [p]eople
inside[,] … empty chip bags, beer cans, [a] dry paint bucket, [and] clothing items … just
things thrown about.” She stayed at the apartment for seven or eight hours during the
3 The jury was not informed that Vang’s contact with defendant was in response to
her detention by store loss prevention officers for suspected shoplifting.
4 “Bando” was slang for abandoned building.
4.
daytime. While she was there, she ate pizza and drank a soda, used the restroom, and
slept on the couch. Defendant did not take anything from Oma’s apartment.
Defendant admitted that she had suffered multiple theft-related convictions, and a
fraud conviction.
DISCUSSION
1. False Name Evidence
Defendant argues that the trial court abused its discretion in admitting evidence
that she gave a false name while she was detained for shoplifting. She contends that
giving the false name was related to the shoplifting and unrelated to the burglary, and
therefore could not have shown consciousness of guilt. The People disagree, arguing that
giving the false name reflected consciousness of guilt as to the burglary because “[t]he
evidence presented to the trial court indicated that [defendant] had an arrest warrant for a
burglary and that [defendant] was arrested solely based on the burglary warrant, not due
to the shoplifting.” Alternatively, the People argue that any error was harmless. We
conclude that the admission of the false name evidence was not an abuse of discretion,
and in any event, any error was harmless.
Generally, giving a false name or false information to a law enforcement officer
investigating a crime supports an inference of consciousness of guilt. (People v. Watkins
(2012) 55 Cal.4th 999, 1028; People v. Geier (2007) 41 Cal.4th 555, 589 [“ ‘[t]he
inference of consciousness of guilt from willful falsehood or fabrication or suppression of
evidence is one supported by common sense, which many jurors are likely to indulge
even without an instruction’ ”].) However, courts have cautioned that such false
statements regarding commission of a crime must concern the crime or crimes for which
the defendant is charged to establish consciousness of guilt. (People v. Fritz (2007) 153
Cal.App.4th 949, 952; see also CALCRIM No. 362 [allowing a jury to draw an inference
of consciousness of guilt if the defendant made a false or misleading statement “relating
to the charged crime” (italics added)]; CALJIC No. 2.03 [similar].)
5.
Defendant contends that giving a false name was related to the shoplifting offense
for which she was detained. That is certainly one logical inference that could be drawn.
However, defendant giving a false name to an officer during a detention for shoplifting
could have suggested that she sought to avoid punishment on the shoplifting, or because
she had committed the prior burglary, or other crimes. (See People v. Blakeslee (1969) 2
Cal.App.3d 831, 839 [“the logical force of [a] deduction [of consciousness of guilt] is
weakened when there is some plausibility to the defendant’s subsequent explanation of
the reason for the falsehood”].) The fact that there were multiple reasonable inferences
that could have been drawn from defendant’s use of a false name did not require
exclusion of the evidence. (People v. Watkins, supra, 55 Cal.4th at pp. 1027–1028
[allowing evidence that the defendant refused to stand in a lineup to prove consciousness
of guilt even though the defendant had an alternative explanation]; People v. Bay (2019)
40 Cal.App.5th 126, 133; see People v. Jenkins (1979) 91 Cal.App.3d 579, 585–586
[false name evidence from which multiple inferences could be drawn can be admissible
even if it is insufficient to sustain a conviction].) Indeed, the instruction on
consciousness of guilt reflected that it was the jury’s duty to determine whether
“defendant made a false or misleading statement … relating to the charged crime” and, if
so, the “conduct may show she was aware of her guilt … and [the jury] may consider it in
determining her guilt.” (See CALCRIM No. 362, italics added.) The trial court did not
abuse its discretion in admitting the evidence of defendant’s use of a false name.
When evidence supporting an inference of consciousness of guilt is admitted,
instruction pursuant to CALCRIM No. 362 is appropriate. (People v. Howard (2008) 42
Cal.4th 1000, 1024–1025.) Further, defendant forfeited the claim of instructional error
by failing to object below. (See People v. Anderson (2007) 152 Cal.App.4th 919, 927
[claim is forfeited on appeal if not objected to unless it impacts fundamental rights].)
Any error in admitting the challenged evidence and in giving CALCRIM No. 362,
even if not forfeited, was harmless under any prejudice-based standard of review.
6.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.) Oma did not know
defendant and did not authorize her to enter the apartment. Defendant’s fingerprints were
recovered from inside the apartment and she admitted being inside the apartment.
Defendant had been convicted of multiple prior theft-related offenses. Defendant’s
testimony was otherwise not credible. Her testimony that the apartment was abandoned
was inconsistent with the other evidence. Kasparian testified that abandoned apartments
are normally empty inside. In this case, the state of the apartment was inconsistent with it
being abandoned. The power was on, all of the appliances were still in the apartment,
food was in the refrigerator, the kitchen table and six chairs were in the kitchen, and
two large leather accent chairs, a couch, and a coffee table were in the living room.
Further, the testimony regarding defendant giving a false name was brief and was not
repeated in the People’s closing argument. (See People v. Jennings (1991) 53 Cal.3d
334, 390.) Based on the overwhelming evidence of guilt, the other evidence that
undermined defendant’s credibility, the brief amount of time spent on the false name
evidence, and the fact that the false name testimony was not mentioned by the People
during closing argument, we conclude beyond a reasonable doubt that exclusion of the
false name evidence would not have resulted in a different verdict. (Chapman, at p. 24.)
2. Restitution Fine and Fees
A. Dueñas
First, defendant relies on Dueñas and argues the court improperly imposed a
$1,200 restitution fine (§ 1202.4), a court operations fee of $40 (§ 1465.8), and a criminal
conviction fee of $30 (Gov. Code, § 70373), without determining her ability to pay in
violation of her due process rights. Defendant also contends that the imposition of fines
and fees without assessing her ability to pay constituted imposition of excessive fines as
prohibited by the Eighth Amendment (as applied through the 14th Amendment) and
article I, section 17, of the California Constitution. The People respond that defendant
7.
forfeited her fine- and fee-related claims, that she failed to “show an inability to pay the
non-punitive fees,” and “has no constitutional right to an ability-to-pay hearing for the
restitution fine.” We agree with the People that defendant’s fine- and fee-related claims
are forfeited.
The parties agree that defendant’s trial counsel did not object at sentencing to the
imposition of the $1,200 restitution fine, the $40 court operations fee, or the $30 criminal
conviction fee. When the court imposes a restitution fine greater than the $300 statutory
minimum amount, “[s]ection 1202.4 expressly contemplates an objection based on
inability to pay,” and a defendant’s failure to object results in forfeiture of the issue.
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen).) Such a forfeiture
rule has been consistently followed. (People v. Nelson (2011) 51 Cal.4th 198, 227;
People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Trujillo (2015) 60 Cal.4th 850,
853–854.) Here, the court ordered defendant to pay a restitution fine of $1,200 under
section 1202.4, subdivision (b), an amount greater than the statutory minimum fine.
Defendant had the statutory right to object to the $1,200 restitution fine and demonstrate
her alleged inability to pay. Such an objection “would not have been futile under
governing law at the time of [her] sentencing hearing,” and her failure to do so has
forfeited the issue. (Frandsen, at p. 1154; People v. Lowery (2020) 43 Cal.App.5th 1046,
1053–1054; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032–1033.)
In addition, any objections to the assessments imposed under section 1465.8 and
Government Code section 70373, and the other fees, would not have been futile. As the
Court of Appeal explained in Frandsen, supra, 33 Cal.App.5th at page 1154, “[a]lthough
both statutory provisions mandate the assessments be imposed, nothing … [prevented a
defendant] from making the same request that the defendant in Dueñas made in the face
of those same mandatory assessments. [A defendant] plainly could have made a record
had [her] ability to pay actually been an issue. Indeed, [she] was obligated to create a
record showing [her] inability to pay the … restitution fine, which would have served to
8.
also address [her] ability to pay the assessments.” (Frandsen, supra, 33 Cal.App.5th at
p. 1154.) Here, defendant was required to create a record to claim her alleged inability to
pay the restitution fine. If she had done so, presumably the record would have included
evidence that addressed her inability to pay the other fines, fees, and assessments
imposed in this case. (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033; People v.
Jenkins (2019) 40 Cal.App.5th 30, 40–41; People v. Keene (2019) 43 Cal.App.5th 861,
863–864.)
Defendant did not object to the court’s imposition of any of the fines, fees, or
assessments, or claim she lacked the ability to pay any of these amounts and has forfeited
review of these issues.
DISPOSITION
The judgment is affirmed.
9.