People v. Crummie CA5

Filed 3/22/21 P. v. Crummie 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
F077994
Plaintiff and Respondent,
(Super. Ct. No. BF167685A)
v.
JOHNASEN LEE CRUMMIE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Judith K.
Dulcich, Judge.
Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Erin Doering, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
A jury convicted defendant of two felony violations of the Penal Code: grand
theft of Global Positioning System (GPS) monitoring equipment (count 1; Pen. Code,
§ 487, subd. (a)) and failure to appear (count 2; § 1320.5). (Undesignated statutory
references are to the Penal Code.) As to each count, it was alleged pursuant to section
12022.1 defendant committed the offenses while released on bail in two other felony
cases.
At trial, during the prosecution’s case-in-chief, a probation department supervisor
testified the cost to the department for the GPS monitor defendant cut (identified by serial
number) was $1,150. Before rebuttal, the prosecutor notified the court the wrong GPS
monitor was identified in the case-in-chief. Accordingly, during rebuttal, the supervisor
discussed the correct GPS monitor that was lost and testified its cost was the same.
On appeal, defendant argues the evidence was insufficient to support his theft
conviction because the prosecution did not establish the fair market value of the GPS
monitor exceeded $950 or that defendant had “used” it for his benefit and that he
intended to deprive the probation department of its use. He further contends the court
erred in sentencing him (and staying the sentence) on the two on-bail enhancements to
count 2. He also argues the court should have stayed his sentence on count 2 pursuant to
section 654 because counts 1 and 2 arose from a single course of conduct with a single
objective. Finally, he contends his due process rights were violated because the court
imposed certain fines and fees without first determining whether defendant had the ability
to pay them.
We agree defendant’s on-bail enhancements to count 2 must be stricken. In all
other respects, we affirm the judgment.
FACTUAL BACKGROUND
Defendant pleaded not guilty to grand theft (count 1) and failure to appear (count
2) and the case proceeded to trial.
Prosecution
Deputy Probation Officer Juliana Medina put a GPS monitor on defendant.
Before placing the monitor on defendant, Medina explained the monitor was the property
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of the probation department, but defendant was allowed to have it on the condition he
returned it. She also explained to defendant, if the monitor was not returned, if it was lost
or damaged, or if he intentionally destroyed it, he would be required to reimburse the
department for its value and could be charged with felony theft. Defendant also signed a
document acknowledging these conditions on December 9, 2016. The prosecutor
introduced into evidence the terms and conditions signed by defendant. The document
explained defendant would be required to pay the following amounts for damaged, lost,
or destroyed equipment: $1,150 for the transmitter, $149 for the ankle strap, and $109
for the charging unit.
On January 20, 2017, Medina saw an e-mail from the system tracking defendant’s
GPS monitor. Medina had received it the day before at approximately 9:00 a.m. when
she was off duty; it notified her of a “master tamper” at Oregon Street. At trial, Medina
explained a master tamper alert may be triggered if the strap of the GPS monitor has been
tampered with or if the monitor has been soaked. Defendant’s GPS monitor was dead by
the time Medina checked the system. She responded to the address where the master
tamper occurred but was unable to locate the GPS monitor at that house or the
neighboring properties. The probation department never received defendant’s GPS
monitor back.
Officer Christopher Peck was on duty on January 26, 2017, at approximately 1:30
p.m. when he was dispatched to a location regarding an attempted burglary. During his
search of an apartment for a suspect, Officer Peck contacted several people, including
defendant. Officer Peck ran a records check on everyone he encountered at the apartment
and learned defendant had two felony warrants for his arrest for case Nos. BF161847A
and BF156854A. Officer Peck then took defendant into custody; he denied defendant
told him he had an outstanding warrant.
Medina spoke to defendant on January 27, 2017, at the central receiving facility
after reading him his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), which
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defendant acknowledged he understood. Defendant told Medina he woke up late for
court on January 19th, drove over to his friend’s house, and cut off his monitor because
he knew there was going to be a warrant out for his arrest. Defendant said he left the
GPS monitor outside of his friend’s house on the east side of town by the dumpsters.
Medina reminded defendant of the terms and conditions he signed requiring him to return
the monitor to the probation department, and defendant said, “[D]o what you got to do.
I’m going to prison anyway.” He also said he knew he “messed up.” On cross-
examination, Medina testified the public at large does not have access to the probation
department’s monitor tracking system. She also testified she did not go back to look for
the GPS monitor again after speaking to defendant and he told her he left it outside of his
friend’s house by the dumpsters.
Probation supervisor Matthew Gomez testified he is tasked with purchasing and
inventorying GPS monitors. Based on his experience, Gomez testified the probation
department was charged $1,150 for “the placement value” of the GPS unit. He explained
the probation department must also purchase the ankle strap that has two fiber-optic lines
running through it, which costs $149 to replace. Additionally, “the charging unit
replacement value” is $109.
The prosecutor showed Gomez an invoice dated June 29, 2018, for a specific GPS
monitor, serial No. 12-777355, which was listed as a “lost unit.” Gomez testified the unit
was assigned to defendant and the invoice reflected the probation department was
charged $1,150 for the GPS monitor.
Defense and Motion for Acquittal
Defendant testified on his own behalf. He was on felony probation in January
2017 and recalled receiving a GPS monitor from Medina. At some point before
Christmas of 2016, the monitor “kept going dead,” so Medina called defendant to notify
him there was a “tampering going on with it.” He explained to her the monitor kept
vibrating, and Medina told him to come to the office where she replaced the monitor.
4.
Defendant testified he had a court date on January 19, 2017, but he overslept. He
was aware of the court process and that he was due in court that day for two cases—
BF161847A and BF156854A—and that he was about to be sentenced. He cut off the
GPS monitor after his failure to appear because he did not want the probation department
to know his location; he left it by a trash can. He denied trying to sell the monitor or
“messing with” it so the probation department could not find it. He conceded he did not
call his probation officer to notify her where he left the monitor. But, because the
monitor had GPS, he thought the probation department would locate and retrieve it.
Defendant testified he approached Officer Steven Mayberry on a later date and
informed him he had two felony warrants out for his arrest. Officer Mayberry did a
records check and arrested defendant. Officer Mayberry testified he recalled supervising
defendant in juvenile hall and encountering him while assisting Officer Peck in an
investigation of an attempted burglary; however, he did not recall speaking to or
handcuffing defendant at that time.
According to defendant, he spoke with Medina the day after he was taken into
custody and told her the exact location of the GPS monitor, including the address and
where he left it. Medina told him she was going to retrieve the GPS unit, but she never
went back even though he told her exactly where it was. He denied having the intent to
steal; he testified he thought the probation department would be able to find the monitor
because it had GPS.
After the defense rested, defense counsel brought a motion for acquittal of count 1
(grand theft) pursuant to section 1118.1 He argued the evidence was insufficient to
convict defendant under a theory that he embezzled the GPS device. The prosecutor
argued “all four elements were sufficiently shown. The defendant even admitted on the
stand he never intended on personally delivering it back to probation. He just left it there
on the assumption that probation would go get it with no indication from probation that
they would do that,” evidencing at least an intent to temporarily deprive. The prosecutor
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further argued there was an inference defendant intended to permanently deprive the
probation department of the GPS device as well.
The court held there was sufficient evidence to send the case to the jury and to
sustain a conviction, denying defendant’s section 1118.1 motion.
Rebuttal
Thereafter, the prosecutor notified the court of her intent to call two rebuttal
witnesses based on “some new information.” She explained she spoke with the probation
department and learned defendant was issued three different GPS monitors, and the serial
number on the invoice presented in the People’s case-in-chief did not correspond with the
monitor defendant lost. Rather, defendant lost the third monitor he was issued so the
prosecutor would “be clearing that up on rebuttal.” Defense counsel did not object or
otherwise comment.
Probation Supervisor Gomez then testified monitor No. 12-777355, which he had
previously testified about, was not the correct serial number for the lost device. He
explained defendant was issued three different monitors. On December 9, 2016,
defendant was initially issued a monitor and signed the terms and conditions, but the
device was not working properly so the department assigned defendant a different unit
that day. The second monitor, serial No. 12-777355, was deactivated three days later
because it needed to be repaired, and defendant was issued a third monitor with serial
No. 12-766308. The People introduced the invoice for the third monitor. The invoice
reflected the same price, $1,150, as the previously admitted invoice for the second
monitor. Gomez testified as a custodian of records for GPS monitors for probation that
each monitor is the same cost. He explained the third monitor was also equipped with an
ankle strap with a price of $149 and a charging unit with a price of $109; the prices of the
ankle straps and charging units have remained the same over the years.
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During cross-examination, Medina testified that if she had been working on
January 19, 2017, when the tamper notification was received, she would have gone to the
location of the GPS monitor and tried to retrieve it.
Verdict and Sentencing
The jury convicted defendant of felony grand theft in violation of section 487,
subdivision (a) (count 1) and found the GPS monitor was valued at $950 or more. The
jury found true two on-bail enhancements to count 1 pursuant to section 12022.1,
alleging defendant committed the charged felony while on bail in case Nos. BF156854A
and BF161847A. The jury also convicted defendant of felony failure to appear in
violation of section 1320.5 (count 2) and found true two on-bail enhancements to count 2
pursuant to section 12022.1 also alleging defendant committed the charged felony while
on bail in case Nos. BF156854A and BF161847A.
The court sentenced defendant to a total aggregate term of term of nine years four
months. It sentenced defendant to the midterm of four years on count 1 plus an
additional four years for the two section 12022.1 enhancements. The court sentenced
defendant to one-third the midterm on count 2, a term of 16 months, to be served
consecutively to defendant’s sentence on count 1. It ordered defendant’s sentence on
count 2 to be enhanced by four years based on the two section 12022.1 enhancements,
but it stayed the punishment on these enhancements pursuant to section 1385 “until the
successful completion of the sentence imposed.”
DISCUSSION
I. Sufficiency of the Evidence
Defendant argues the evidence was insufficient to establish he committed felony
grand theft because it did not establish the value of the GPS monitor was $950 or more,
that defendant “used” the property for his benefit, or that he intended to deprive the
probation department of its use. We conclude sufficient evidence supports his
conviction.
7.
A. Relevant Factual and Procedural History
During closing argument, the prosecutor argued defendant committed grand theft
by embezzlement in this case. The court instructed the jury pursuant to CALCRIM
No. 1806 that in order to prove grand theft by embezzlement, the prosecution was
required to prove: “1. [a]n owner or the owner’s agent entrusted his property to the
defendant; [¶] 2. [t]he owner or owner’s agent did so because he trusted the defendant;
[¶] 3. [t]he defendant fraudulently used that property for his own benefit; [and] [¶] 4.
[w]hen the defendant used the property, he intended to deprive the owner of it.” (See
CALCRIM No. 1806.) The court further instructed the jury pursuant to CALCRIM
No. 1801: “If you conclude that the defendant committed a theft, you must decide
whether the crime was grand theft or petty theft. [¶] The defendant committed grand
theft if the value of the property or services is more than $950.” (See CALCRIM
No. 1801.)
B. Standard of Review and Applicable Law
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v. Edwards (2013) 57 Cal.4th
658, 715.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
A person commits grand theft by unlawfully taking property of a value exceeding
$950. (§ 487, subd. (a).) “Embezzlement is the fraudulent appropriation of property by a
person to whom it has been [e]ntrusted.” (§ 503; see People v. Vidana (2016) 1 Cal.5th
632, 639.) The elements of embezzlement are “‘1. An owner entrusted his/her property
to the defendant; 2. The owner did so because he/she trusted the defendant; 3. The
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defendant fraudulently converted that property for his/her own benefit; [and] 4. When the
defendant converted the property, he/she intended to deprive the owner of its use.’”
(People v. Fenderson (2010) 188 Cal.App.4th 625, 636; see CALCRIM No. 1806.)
C. Substantial Evidence the Value of the GPS Monitor Exceeded $950
Defendant first contends the evidence did not establish the fair market value of the
GPS monitor and its parts was greater than $950. We disagree.
1. Applicable Law
Section 484, subdivision (a) defines theft and provides “the reasonable and fair
market value” shall be the test for determining the value of stolen property as opposed to
the value of the property to any particular individual. (People v. Romanowski (2017) 2
Cal.5th 903, 914; see People v. Cook (1965) 233 Cal.App.2d 435, 437.) “When you have
a willing buyer and a willing seller, neither of whom is forced to act, the price they agree
upon is the highest price obtainable for the article in the open market. Put another way,
‘fair market value’ means the highest price obtainable in the market place.” (People v.
Pena (1977) 68 Cal.App.3d 100, 104.) “However, this rule is by necessity subject to the
qualification that under circumstances where, for example, the property has a unique or
restricted use and extremely limited market, the actual or replacement cost to the one
from whom it was stolen is its fair market value.” (People v. Renfro (1967) 250
Cal.App.2d 921, 924.)
Fair market value may be established by opinion or circumstantial evidence.
(People v. Grant (2020) 57 Cal.App.5th 323, 329; accord, People v. Lizarraga (1954)
122 Cal.App.2d 436, 438; see generally People v. Tijerina (1969) 1 Cal.3d 41, 45 [“[T]he
price charged by a retail store from which merchandise is stolen” is also “sufficient to
establish the value of the merchandise,” absent proof to the contrary].)
9.
2. Analysis
Defendant asserts Gomez only testified to the “replacement value” of the GPS
monitor and did not state its fair market value as required; thus, there was insufficient
evidence to support the jury’s conclusion the fair market value of the GPS monitor was
more than $950. He asserts, because the prosecution failed to establish the fair market
value of the GPS monitor exceeded $950, his conviction should be reduced to
misdemeanor petty theft. The People respond the cost to the probation department to
purchase a new device is the fair market value of the property and, regardless, the
technology is unique and has a limited market, so the replacement value is also
appropriate evidence of its value. We reject defendant’s contentions.
Here, there was substantial evidence from which the jury could conclude the fair
market value of the GPS monitor and its parts exceeded $950. Gomez testified generally
regarding the price agreed upon by the buyer, the probation department, and the seller of
the GPS monitors for the units—$1,150. Gomez further generally testified ankle straps
for the GPS monitors cost $149 to replace and charging units cost $109 to replace. The
prosecution also introduced both Gomez’s testimony and invoices regarding the cost of
the two specific GPS monitors assigned to defendant—$1,150 per unit. The quoted
amounts reflected the actual value charged for the units in the open market. Thus, these
prices reflected the “fair market value” of the GPS units and their attachments, as
opposed to the value of the unit or its parts to a particular person. Accordingly, we
conclude substantial evidence supports the jury’s conclusion the value of the GPS
monitor and its related lost parts exceeded $950.
D. Court Did Not Err in Denying Defendant’s Motion for Acquittal
Defendant next contends the court should have granted his motion for acquittal on
count 1 because the evidence was insufficient to establish the fair market value of the lost
monitor when the defense rested. He further contends, if the matter is forfeited for his
10.
counsel’s failure to renew the motion once the prosecutor disclosed she introduced the
wrong invoice, his counsel was ineffective.
1. Applicable Law—Motion for Acquittal
After the close of evidence on either side, the court on motion of the defendant or
on its own motion, “shall order the entry of a judgment of acquittal of one or more of the
offenses charged in the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal.” (§ 1118.1.)
We review the denial of a section 1118.1 motion using the same standard
“‘employed in reviewing the sufficiency of the evidence to support a conviction.’”
(People v. Veamatahau (2020) 9 Cal.5th 16, 35; see People v. Houston (2012) 54 Cal.4th
1186, 1215.) We thus examine “‘“the entire record in the light most favorable to the
judgment”’ to determine whether it discloses substantial evidence—‘“evidence that is
reasonable, credible, and of solid value”’—‘“from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.”’” (Veamatahau, at p. 35.) Our
review “‘“‘presume[s] in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.’” [Citation.] … [O]ur task is not to
resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence
might “‘“be reasonably reconciled with the defendant’s innocence.”’”’” (Id. at pp. 35–
36.) Instead, we ask whether there is “‘“‘substantial evidence of the existence of each
element of the offense charged’”’” such that any rational jury may have convicted the
defendant. (Id. at p. 36.)
2. Applicable Law—Ineffective Assistance of Counsel
A defendant claiming ineffective assistance of counsel must satisfy the two-part
test of Strickland v. Washington requiring a showing of counsel’s deficient performance
and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As to deficient
performance, a defendant “must show that counsel’s representation fell below an
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objective standard of reasonableness” measured against “prevailing professional norms.”
(Id. at p. 688.) In evaluating trial counsel’s actions, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” (Id. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a
defendant must overcome the presumption that the challenged action might be considered
sound trial strategy under the circumstances. (Strickland, supra, at p. 689; People v.
Dennis, supra, at p. 541.) “Reasonableness must be assessed through the likely
perspective of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
The prejudice prong requires a defendant to establish “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Ibid.)
3. Analysis
Defendant contends the court should have granted his motion for acquittal after the
defense rested because there was no evidence presented to establish the value of the lost
GPS monitor. He asserts Gomez’s testimony and the invoice in the prosecution’s case-
in-chief referred to a monitor with a serial number different from the one he cut off. If
the issue was not sufficiently preserved because defense counsel failed to renew the
section 1118.1 motion after the prosecutor revealed she presented an invoice and
testimony for the wrong GPS monitor, defendant argues his counsel provided ineffective
assistance by failing to renew the motion. Again, we reject defendant’s contentions.
We cannot conclude the trial court erred in denying defendant’s motion to acquit.
In the prosecution’s case-in-chief, Gomez testified he was the administrator of the GPS
program and in charge of purchasing and inventorying GPS monitors. And, as discussed,
based on his experience, Gomez testified the probation department was charged $1,150
12.
for each GPS unit, $109 for a charging unit replacement, and $149 to replace an ankle
strap of a GPS device. Gomez’s testimony pertained generally to the purchase of GPS
units by the probation department as opposed to the specific unit assigned to defendant.
He also testified regarding a specific unit with a particular serial number assigned to
defendant, and the prosecution introduced an invoice reflecting the cost of that unit,
$1,150. Viewing the evidence at the time the motion was made in the light most
favorable to the court’s ruling, we conclude there was substantial evidence from which
the jury could conclude the standard cost of a GPS unit and its parts in the marketplace
exceeded $950 dollars. (People v. Ceja (1988) 205 Cal.App.3d 1296, 1301 [“the
sufficiency of the evidence is tested as it stands at the time the (section 1118.1) motion is
made”].) Accordingly, we cannot conclude the court erred in denying defendant’s
section 1118.1 motion for acquittal.
Defendant next asserts, even if the court properly denied the motion initially, it
should have granted it after the prosecutor revealed she introduced an invoice for the
wrong GPS monitor in her case-in-chief. As defendant acknowledges, his counsel did
not renew the motion for acquittal after the prosecutor explained the GPS monitor that
was identified in the invoice by serial number was a different monitor than the one
defendant was charged with removing. And we disagree with defendant that his counsel
was ineffective in failing to renew the motion at that point.
Where, as here, the error claimed is the failure to make a motion, the defendant
must show the motion would have been successful. (See generally People v. Smithey
(1999) 20 Cal.4th 936, 1012; People v. Grant (1988) 45 Cal.3d 829, 864; People v.
Upsher (2007) 155 Cal.App.4th 1311, 1330.) In addition, the defendant must overcome
the presumption trial counsel was effective and that the challenged action might be
considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561.)
Defense counsel was not asked for an explanation as to why he did not renew the
motion for acquittal following the prosecutor’s pronouncement. (See People v. Scott
13.
(1997) 15 Cal.4th 1188, 1212 [on direct appeal, when no explanation for counsel’s
conduct can be found in the record, “we must reject the claim [of ineffective assistance of
counsel] on appeal unless counsel was asked for and failed to provide a satisfactory
explanation, or there simply can be no satisfactory explanation”]; accord, People v.
Hernandez (2004) 33 Cal.4th 1040, 1053.) And there was a satisfactory reason why he
may not have done so: as we have already concluded, the prosecution had introduced
substantial evidence of the value of the monitor through Gomez’s testimony, even
disregarding the invoice. (See People v. Lizarraga, supra, 122 Cal.App.2d at p. 437
[testimony of experienced furriers sufficient to establish value of stolen fur pieces];
People v. Williams (1959) 169 Cal.App.2d 400, 403 [testimony by experienced salesclerk
sufficient to establish value of stolen suits].)
Additionally, there was authority permitting the prosecution to reopen its case-in-
chief to introduce additional evidence of this element. Indeed, our court has held a trial
court “always has discretion to allow the prosecution to reopen after a section 1118
motion so long as the court is convinced that the failure to present evidence on the issue
was a result of ‘inadvertence or mistake on the part of the prosecutor and not from an
attempt to gain a tactical advantage over [the defendant].’” (People v. Goss (1992) 7
Cal.App.4th 702, 708; see People v. Ceja, supra, 205 Cal.App.3d at p. 1304.)
Accordingly, defense counsel could reasonably have decided renewing the motion for
acquittal would have been futile because the failure to present the correct invoice during
the prosecution’s case-in-chief was clearly a result of the prosecutor’s inadvertence or
mistake rather than an attempt to gain a tactical advantage. (See People v. Goss, at p. 708
[court did not err in denying motion for acquittal and permitting prosecutor to reopen
case to prove enhancements after defense rested where prosecutor stated he failed to
present evidence of priors during case-in-chief through his own “inadvertence” though
evidence was prepared in anticipation of trial]; People v. Ceja, at p. 1304 [court did not
err in allowing prosecutor to reopen case to present evidence of prior conviction where
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failure to prove priors clearly resulted from inadvertence or mistake on part of
prosecutor].)
Furthermore, we cannot conclude defendant was prejudiced by his counsel’s
failure to renew the section 1118.1 motion. As discussed, there was substantial evidence
presented in the prosecution’s case-in-chief, independent of the invoice, from which a
reasonable trier of fact could find the fair market value of the lost GPS monitor and its
parts exceeded $950. Accordingly, we cannot conclude a different result was reasonably
probable if his counsel had renewed the motion for acquittal after the prosecutor’s
pronouncement.
We reject defendant’s contentions.
E. Sufficient Evidence Established Defendant “Used” the Property for His
Benefit and Intended to Deprive the Probation Department of Its Use
Defendant also challenges his theft conviction arguing there was insufficient
evidence he used the GPS monitor for his own benefit or with the intent to deprive the
owner, the probation department, of its use as was required to sustain a grand theft
conviction based on a theory of embezzlement. Rather, he argues, he removed the
property and abandoned it, “doing his utmost not to use it.” Defendant also asserts the
evidence was insufficient to establish he intended to deprive the probation department of
its use of the GPS unit. The People respond, “By cutting off the GPS device and leaving
it near a dumpster, [defendant] effectively used the discarded technology to mislead his
probation officer regarding his location,” which benefitted defendant because the
probation officer was unable to locate him for almost a week. Again, we conclude the
evidence supports defendant’s conviction.
There was substantial evidence from which the jury could conclude that by
disposing of the GPS monitor, defendant used it for his benefit. Indeed, he admitted he
disposed of the unit so the probation department could not track him, a direct benefit he
15.
received from cutting off the unit. Thus, there was substantial evidence to support the
jury’s conclusion he “used” the property for his benefit.
Likewise, we are not persuaded by defendant’s argument the evidence was
insufficient to establish he intended to deprive the probation department of the use of the
unit. Indeed, defendant had agreed to return the GPS unit to the department but failed to
do so. Instead, he cut the ankle strap and left the unit with no intent of returning it to the
probation department himself. Such evidence permitted the jury to reasonably infer
defendant intended to deprive the probation department of its use of the unit. (People v.
Hall (1967) 253 Cal.App.2d 1051, 1054 [“A specific intent to steal [the] property … need
not be directly proved but may be inferred from all of the circumstances of the case”]; see
People v. Morales (1993) 19 Cal.App.4th 1383, 1391.)
We reject defendant’s contention.
II. Court Erred in Imposing On-Bail Enhancements to Count 2
Defendant next asserts the trial court erroneously applied the section 12022.1,
subdivision (b) on-bail enhancements twice at sentencing, once to count 1 and again to
count 2. He argues these offender-related enhancements may be counted only once in
arriving at the aggregate sentence for multiple felony convictions under section 1170.1,
subdivision (a). The People concede the court erred in this regard. We agree with
defendant and accept the People’s concession.
In People v. Coronado (1995) 12 Cal.4th 145, the California Supreme Court held:
“[T]here are at least two types of sentence enhancements: (1) those which go to the
nature of the offender; and (2) those which go to the nature of the offense. [Citations.]
Prior prison term enhancements, such as those authorized by section 667.5(b), fall into
the first category and are attributable to the defendant’s status as a repeat offender.
[Citations.] The second category of enhancements … arise from the circumstances of the
crime and typically focus on what the defendant did when the current offense was
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committed. [Citation.]” (Id. at pp. 156–157, fn. omitted, 2d italics omitted.) A section
12022.1 enhancement describes the nature of the offender as distinguished from the
crime. (People v. Walker (2002) 29 Cal.4th 577, 589 [“a section 12022.1 enhancement
turns on the status of a defendant as a repeat offender, not on what the defendant did
when committing the current crime, i.e., the secondary offense”].) Enhancements
describing the nature of the offender such as those pursuant to section 12022.1 are
imposed only once in a particular case. (People v. Augborne (2002) 104 Cal.App.4th
362, 377.)
We conclude the trial court erred in imposing sentences for the on-bail
enhancements to both count 1 and count 2. The court imposed two section 12022.1 on-
bail enhancements, adding two 2-year consecutive terms to defendant’s sentence for
count 1. The trial court also imposed but stayed two more section 12022.1 on-bail
enhancements to count 2 pending successful completion of the sentence. Because the on-
bail enhancements could only be imposed once, the court should have stricken rather than
imposed and stayed the sentences on these enhancements to count 2. Accordingly, we
strike the on-bail enhancements and related sentences imposed on count 2. (See People
v. Augborne, supra, 104 Cal.App.4th at p. 377 [court could not impose two on-bail felony
sentence enhancements in prosecution for robbery and criminal threats; on-bail sentence
enhancement describes nature of offender, rather than nature of offense, and, as such,
could be imposed only once in a particular case]; accord, People v. Mackabee (1989) 214
Cal.App.3d 1250, 1262 [“a single primary offense would not support two section 12022.1
enhancements—one for each of two secondary offenses”]; People v. Nguyen (1988) 204
Cal.App.3d 181, 196 [“Imposition of crime-bail-crime enhancements does not depend on
the number of offenses charged in the information. Like a prior conviction, it may be
added only once to the defendant’s sentence”].)
17.
III. Court Did Not Err in Ordering Consecutive Sentences
Defendant further asserts the court erred in running his sentences on counts 1 and
2 consecutively rather than staying one of the sentences pursuant to section 654.
A. Standard of Review and Applicable Law
“An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).)
“A trial court’s express or implied determination that two crimes were separate,
involving separate objectives, must be upheld on appeal if supported by substantial
evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.) “‘The trial court has broad
latitude in determining whether section 654, subdivision (a) applies in a given case.’”
(People v. Vasquez (2020) 44 Cal.App.5th 732, 737.) Under this standard, this court
must view the evidence in the light most favorable to the trial court’s finding and
presume the existence of every fact the trial court could reasonably deduce from the
record. (Vasquez, at p. 737; People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.)
B. Analysis
Defendant asserts the trial court violated section 654’s prohibition against multiple
punishments for a single course of conduct by failing to stay his sentence on count 1 or 2.
He contends he had the same objective in failing to appear for court and cutting off his
GPS monitor—to avoid law enforcement and court surveillance and evade the process of
the court. He asserts his actions constituted an indivisible course of conduct driven by a
singular intent and objective, and we should modify the judgment to stay execution on
the failure to appear count (count 2). The People assert defendant “had a distinct intent
and objective when he committed each crime.” They contend neither crime was essential
to the commission of the other, and there was sufficient time for defendant to renew his
criminal intentions in between his decision not to attend court and when he cut off the
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GPS device. Accordingly, the court did not err in running the sentences on the two
counts consecutively. We cannot conclude the trial court erred in running the sentences
consecutively.
Here, there was sufficient evidence from which the court could reasonably
conclude defendant’s actions giving rise to the charges were divisible and motivated by
separate intents and objectives. This is not a case where the charges arose from a single
act. (See Neal v. State of California (1960) 55 Cal.2d 11, 19 [“Insofar as only a single act
is charged as the basis for the conviction, … the defendant can be punished only once”],
overruled in part on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334, 338.)
Rather, the two offenses are predicated on different acts or omissions: the failure to
appear count stemmed from defendant’s act or omission of missing his court appearance;
whereas the grand theft count was based upon defendant’s affirmative act of later cutting
off his ankle monitor. The trial court could reasonably conclude defendant failed to
appear in court with the intent to avoid being sentenced and to evade the process of the
court. The court could also have reasonably concluded defendant’s act of cutting off his
ankle monitor was motivated by his intent to avoid being arrested and apprehended based
upon his failure to appear; indeed, defendant testified he cut off the monitor because he
knew it would reveal his location. Though related, such intents and objectives are
distinct from one another, and neither was essential to the completion of the other.
Accordingly, viewing the evidence in the light most favorable to the judgment, as we
must, we conclude substantial evidence supports the trial court’s decision to run
defendant’s sentences on counts 1 and 2 consecutively, rather than stay one of the
sentences pursuant to section 654. (See People v. Rodriguez (2015) 235 Cal.App.4th
1000, 1006–1007 [court not required to stay sentence for evading arrest by reckless
driving as incidental to defendant’s objective in committing robbery where evidence
established two distinct objectives: committing a robbery and evading arrest, and act of
evading arrest was not method by which defendant obtained money in robbery]; accord,
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People v. Jimenez (2019) 32 Cal.App.5th 409, 425 [substantial evidence supported
court’s conclusion defendant harbored multiple criminal objectives in fleeing from police
in car and heading directly toward a second police car—intending to evade and trying to
assault]; see generally People v. Blake (1998) 68 Cal.App.4th 509, 512 [“Where a
defendant entertains multiple criminal objectives independent of and not merely
incidental to each other, he may be punished for more than one crime even though the
violations share common acts or are parts of an otherwise indivisible course of
conduct”].)
The trial court also reasonably could have found defendant had time to reflect
before cutting off his ankle monitor, further supporting the divisibility of the crimes.
(See People v. Andra (2007) 156 Cal.App.4th 638, 640 [“‘Under section 654, “a course
of conduct divisible in time, although directed to one objective, may give rise to multiple
violations and punishment. [Citations.]” [Citations.] This is particularly so where the
offenses are temporally separated in such a way as to afford the defendant opportunity to
reflect and to renew his or her intent before committing the next one, thereby aggravating
the violation of public security or policy already undertaken. [Citation.]’ [Citation.]”];
accord, People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 [“a course of conduct
divisible in time, although directed to one objective, may give rise to multiple violations
and punishment”].) Medina testified defendant reported to her he woke up late for court;
then he drove to his friend’s house where he cut off the GPS monitor. Such testimony
provided substantial evidence defendant’s decision to cut off his GPS monitor was
temporally separated such that defendant had time to reflect and renew his intent before
committing the act giving rise to his theft conviction. Accordingly, such evidence further
supports the trial court’s conclusion the two crimes were divisible and allowed for the
imposition of consecutive sentences.
Defendant’s reliance upon People v. Britt (2004) 32 Cal.4th 944 (Britt) in support
of his argument is misplaced. In Britt, the California Supreme Court held a defendant
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could not be punished for both failing to notify authorities in his old county of his move
and failing to register as a sex offender in his new county. (Id. at pp. 953–954.) In so
holding, the court held both crimes of failing to report constituted means of achieving the
common end of avoiding police surveillance. (Id. at p. 953.) This objective was
achieved just once, but only by the combination of both reporting violations. (Ibid.)
Unlike in Britt, as discussed, here the court could reasonably have concluded
defendant harbored different objectives in failing to appear in court for sentencing and
then cutting off his ankle monitor—that is, avoiding court and being sentenced in his
outstanding cases and then avoiding detection or arrest as a result of his failure to appear.
The acts did not need to be completed together to achieve these independent objectives.
Accordingly, Britt is inapposite. Instead, we conclude substantial evidence supports the
trial court’s decision to run defendant’s sentences on counts 1 and 2 consecutively rather
than stay one of the sentences pursuant to section 654.
We reject defendant’s contention.
IV. Defendant Is Not Entitled to Remand for an Ability to Pay Hearing
Defendant next argues certain imposed fines and fees must be stricken or stayed
because the court did not hold an ability to pay hearing before imposing them. We
conclude this issue was forfeited.
A. Relevant Factual Background
At the sentencing hearing, the court ordered restitution pursuant to section 1202.4,
subdivision (f) in the amount of $1,408 to the Kern County Probation Department. It also
ordered defendant to pay an $80 fee pursuant to section 1465.8, a $60 fee pursuant to
Government Code section 70373, a restitution fine of $2,700 pursuant to Penal Code
section 1202.4, subdivision (b), and imposed and suspended a parole restitution fine in
the amount of $2,700 pursuant to Penal Code section 1202.45 subject to parole or
21.
postrelease supervision revocation proceedings. The record does not reflect defendant
requested an ability to pay hearing or objected to the imposed fines and fees at any time.
B. Analysis
Defendant argues the court violated his due process rights by imposing fees of $80
for the court operations assessment (§ 1465.8), and $60 for the court facilities fees (Gov.
Code, § 70373) without determining whether he had the ability to pay these amounts.
Defendant’s due process argument is based on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), which was decided after defendant was sentenced and while his current
appeal was pending. Dueñas held that “due process of law requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before
it imposes” any fines or fees. (Id. at p. 1164, see id. at p. 1167; accord, People v.
Castellano (2019) 33 Cal.App.5th 485, 488–489.) Relying on Dueñas, defendant asserts
the fees must be vacated and the $2,700 restitution fine and $2,700 parole revocation fee
must be stayed, and the matter remanded for the court to determine his ability to pay. He
also argues the restitution fine imposed under section 1202.4, subdivision (b) violated his
state and federal constitutional rights against excessive fines.
Defendant concedes he did not raise his challenges below, but he argues our court
can consider the issue for the first time on appeal because Dueñas announced a new
constitutional principle that reasonably could not have been anticipated at the time of his
sentencing hearing. Alternatively, he argues his counsel was ineffective in failing to
object on this basis.
In Dueñas, the defendant lost her driver’s license because she was financially
unable to pay her juvenile citations. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) She
continued to reoffend for driving with a suspended license because the aggregating
criminal conviction assessments and fines prevented her from recovering her license.
(Ibid.) The Dueñas court described this as “cascading consequences” stemming from “a
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series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.”
(Id. at pp. 1163–1164.) The Dueñas court concluded the defendant faced ongoing
unintended punitive consequences because of her inability to pay. (Id. at p. 1168.)
Dueñas determined those unintended consequences were “fundamentally unfair” for an
indigent defendant under principles of due process. (Ibid.) Dueñas held that “due
process of law requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay” before imposing court facilities and court operations
assessments under section 1465.8 and Government Code section 70373, respectively.
(Dueñas, at p. 1164; accord, People v. Castellano, supra, 33 Cal.App.5th at pp. 488–
489.) Additionally, although the court is required by section 1202.4 to impose a
restitution fine, the court must stay the execution of the fine until and unless the People
demonstrate the defendant has the present ability to pay the fine. (Duenas, supra, at p.
1164.)
Here, unlike in Duenas, defendant forfeited any challenge to his alleged inability
to pay the imposed fines and fees by failing to request an ability to pay hearing. The
court ordered defendant to pay a restitution fine of $2,700, well above the statutory
minimum of $300. 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.” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.)
Accordingly, while Dueñas had not been decided at the time of defendant’s sentencing
hearing, defendant had the statutory right to object to the $2,700 restitution fine and
demonstrate his alleged inability to pay, and such an objection “would not have been
futile under governing law at the time of his sentencing hearing.” (Frandsen, at p. 1154
[Dueñas challenge forfeited by failure to object at sentencing]; see People v. Aguilar
(2015) 60 Cal.4th 862, 864, 866 [appellate forfeiture rule applies to various fees imposed
at sentencing].) “Had defendant brought his argument to the court’s attention, it could
have exercised its discretion and considered defendant’s ability to pay, along with other
23.
relevant factors, in ascertaining the [restitution] fine amount.” (People v. Avila (2009) 46
Cal.4th 680, 729.) However, by failing to raise the issue below when he had the statutory
right to do so, defendant has forfeited his claim on appeal.
We further conclude that defendant’s contentions regarding the assessments
imposed under section 1465.8 and Government Code section 70373 are likewise
forfeited. As a practical matter, if defendant chose not to object to the $2,700 restitution
fine based on an inability to pay, he would not complain of the relatively nominal $80
and $60 assessments imposed pursuant to section 1465.8, subdivision (a)(1) and
Government Code section 70373, subdivision (a)(1). (People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033; People v. Frandsen, supra, 33 Cal.App.5th at p. 1154.)
Furthermore, though these fees and assessments were mandatory, nothing in the record of
the sentencing hearing indicates defendant was foreclosed from challenging these
assessments in the trial court in the first instance. (People v. Aviles (2019) 39
Cal.App.5th 1055, 1074; Frandsen, supra, at p. 1154.)
Defendant also asserts, if we find forfeiture, his trial counsel was ineffective for
failing to object to the imposition of fines and fees based on an inability to pay. He bears
the burden of demonstrating ineffective assistance of counsel. (People v. Mickel (2016) 2
Cal.5th 181, 198.)
“‘[A] defendant claiming a violation of the federal constitutional right to effective
assistance of counsel must satisfy a two-pronged showing: that counsel’s performance
was deficient, and that the defendant was prejudiced, that is, there is a reasonable
probability the outcome would have been different were it not for the deficient
performance.’ [Citations.] Rarely is ineffective assistance of counsel established on
appeal since the record usually sheds no light on counsel’s reasons for action or
inaction.” (People v. Woodruff (2018) 5 Cal.5th 697, 736.) In determining whether
counsel’s performance was deficient, we consider whether “‘“‘counsel’s representation
fell below an objective standard of reasonableness under prevailing professional
24.
norms ….’”’” (People v. Johnson (2016) 62 Cal.4th 600, 653.) Reversal is permitted
“‘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.’” (People v. Arredondo
(2019) 8 Cal.5th 694, 711.) “‘If the record on appeal sheds no light on why counsel acted
or failed to act in the manner challenged, an appellate claim of ineffective assistance of
counsel must be rejected unless counsel was asked for an explanation and failed to
provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise,
the claim is more appropriately raised in a petition for writ of habeas corpus.’” (People v.
Gray (2005) 37 Cal.4th 168, 207.) “‘Failure to object rarely constitutes constitutionally
ineffective legal representation.’” (Ibid.)
We cannot say trial counsel had no conceivable tactical purpose for not requesting
an ability to pay hearing. Here, defendant was only 23 years old at the time of sentencing
and indicated he earned money cutting hair (approximately $200 per month). Nothing in
the probation report or the record indicates defendant was unable to work or otherwise
unable to pay the imposed fines and fees. To the contrary, the probation department
noted that, based on defendant’s provided health information, “it appears he is able to
seek and maintain gainful employment.” Accordingly, the probation officer
recommended defendant “be held accountable to pay all fines and fees as prescribed by
the Court.” The record is also silent as to whether defendant has money in savings or
owns any valuable property. It is thus conceivable counsel concluded there was
insufficient evidence of defendant’s inability to pay. As such, the record does not
affirmatively exclude a rational basis for trial counsel’s choice, and therefore defendant
has failed to establish ineffective assistance of counsel.
Because we conclude defendant forfeited his challenge to the imposed fines and
fees, we decline to address the merits of his claim further; he is not entitled to remand for
a hearing on the subject.
25.
DISPOSITION
The on-bail enhancements imposed on count 2 are ordered stricken. As modified,
the judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment reflecting the above modification and to forward a copy to the appropriate
authorities.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DETJEN, J.
26.