Opinion
H040527
10-26-2015
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN ELSWORTH GIBBONS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F23184)
A jury found defendant Dustin Elsworth Gibbons guilty of two counts of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a) - counts 1 (pickup truck) and 5 (Polaris Ranger All-Terrain Vehicle (Polaris ATV)) and two counts of receiving stolen property (Pen. Code, § 496d - counts 2 (tractor) and 3 (Gator)). The trial court suspended imposition of sentence and placed defendant on probation for three years on condition, among other things, that he serve one year in county jail. On appeal, defendant contends that the trial court erred when it admitted evidence of an uncharged offense, failed to conduct an evidentiary hearing on his ineffective assistance of counsel claim in his motion for new trial, ordered him to pay attorney's fees, and imposed a theft fine. We conclude that the trial court imposed an unauthorized theft fine and reverse the order.
I. Statement of Facts
A. Prosecution Case
1. The Stolen Pickup Truck, Tractor, and Gator (Counts 1, 2, & 3)
On May 29, 2012, Jay Mims, the maintenance manager for Redwood Christian Park, arrived at work and discovered that the door to a shed had been forced open. A generator, construction tools worth several thousand dollars, and a John Deere Gator, which is a six-wheel utility vehicle, were missing. Mims later saw two people in the Gator, but he did not recognize them.
Sometime between May 31 and June 2, 2012, a John Deere tractor, which was owned by Daniel Dwyer, was stolen from property in Eureka Canyon near Watsonville. When Dwyer went to the property, he saw tire tracks, which indicated that the tractor had been loaded onto a trailer when it was taken from the property. Some expensive tools were also missing and were never recovered.
Douglas Howard kept a motorhome and a truck on some property in the area of Eureka Canyon Road in Corralitos. On June 8, 2012, Howard found that his 1969 Chevrolet pickup truck was missing as well as a dirt bike, a generator, fishing gear, and tools. His motorhome had been ransacked. Howard believed that "Robert or Justin Neal or Jason Neal, something like that" was involved with the theft of his truck.
In mid-June 2012, Martin Markham saw a pickup truck backed up against a hillside at the entrance to Robin Hood Retreat. Markham thought it was suspicious that the truck had its tailgate down and no one was near it. He contacted the police and was informed that the truck had been stolen. However, by the time that officers arrived at the scene, the truck was gone. Two days later, Markham again saw the pickup truck, which was towing a trailer with a John Deere tractor on it, pass him as he was driving to Boulder Creek. On his way home from town, he saw the truck with its hood up on the side of the road. Markham returned home, contacted the California Highway Patrol (CHP), and drove to where he had last seen the pickup truck to meet the CHP officers. As Markham was driving, he saw defendant driving the truck back to Robin Hood Retreat. Markham contacted CHP to provide the new location.
About 40 minutes after the initial dispatch, CHP Officer John Bourriague received a report of a stolen pickup truck that was seen driving to defendant's house on Robin Hood Lane. Officer Bourriague and two Santa Cruz County deputy sheriffs went to Robin Hood Lane where they saw the pickup truck with the tractor on a flatbed trailer. The officers confirmed that both the pickup truck and the tractor were stolen. The officers also discovered the stolen Gator on the property.
Defendant told Officer Bourriague that he had seen someone at the gas station at the corner of Highway 9 and Highway 236 where the pickup truck had broken down. Defendant spoke with this individual, whom he identified as "Jason," and offered to fix the truck. Defendant refused to provide Jason's last name, even though defendant's father urged him to do so. After defendant fixed the truck, he used it to haul wood. Defendant had the truck for several days and the truck had broken down a couple of times during this period. Though the truck was currently running, defendant had not yet notified the owner that he had fixed it. Defendant gave Officer Bourriague a note, which had the name "Jason" and a telephone number on it, and said, "Call when ur Done with Truck." Officers repeatedly called this number, but they always reached an automated voice mail. They left messages, which were never returned. Officer Bourriague had information that Jason Neal was known to associate with defendant. Defendant also told Officer Bourriague that he did not know to whom the truck or the tractor belonged.
Regarding the Gator, defendant told Officer Bourriague that he bought the Gator through Craig's List. He met the owner at a flower shop near Dominican Hospital and gave him $2,000. However, defendant did not have title or transfer documents, the Craig's List ad, or any contact information for the seller. Officer Bourriague placed defendant under arrest for possession of three stolen vehicles, the truck, the tractor, and the Gator.
While the officers were waiting for a tow truck to impound the stolen vehicles, Deputy Sheriff Damon Gutzwiller was approached by Mandy Storey, defendant's childhood friend. Storey told Deputy Gutzwiller that on approximately June 5, 2012, a friend, Anthony Gilbert, arrived at her house in Boulder Creek with the Gator and asked her to store it for him. Storey suspected that the Gator had been stolen and she was afraid that she would lose her Section 8 housing. She called Gilbert several times to tell him to retrieve the Gator, but she was unable to reach him. She then contacted defendant to come pick it up and he did.
Deputy Gutzwiller's testimony regarding Storey's statements was admitted as impeachment evidence. Storey testified under a grant of immunity. She testified that she did not have a Gator on her property and did not ask defendant to come and pick it up. She spoke to a deputy and fabricated a story about defendant because he had hurt her feelings.
2. The Stolen Polaris ATV - Count 5
In September 2012, Albert Locatelli, who owns property on Empire Grade in Santa Cruz County with his brother Harry Locatelli, reported that a Polaris ATV, weapons, ammunition, and various other items were stolen.
Eric Breger, defendant's neighbor, acted as a middleman for the sale of vehicles that he had picked up or fixed up. Anthony Melendrez, who also lived in Boulder Creek, had previously purchased two vehicles from Breger. Breger contacted Melendrez and told him that he wanted to show him a vehicle. When Melendrez arrived at Breger's home, Breger told him that he did not own the Polaris ATV and did not have the keys to it. However, Breger told Melendrez to wait because "a guy" would bring the keys. About 40 minutes later, defendant arrived with the keys to the vehicle. Defendant then drove the Polaris ATV with Melendrez and Breger as passengers. After the 15-minute test drive, Melendrez decided to purchase the vehicle. Breger gave Melendrez a bill of sale from DMV, which Melendrez did not read carefully. Melendrez, Breger, and defendant then went to a bank in Scotts Valley where Melendrez withdrew $2,500 which he gave to Breger. The DMV documents given to Melendrez had been forged to show that Harry Locatelli was the seller of the Polaris ATV.
Melendrez later testified that he initially saw the Polaris ATV with a flat tire. He returned the next day for the test drive, which was when he first saw defendant.
A few days later, Melendrez went to Mexico. When Melendrez returned, a friend came to his house, saw the Polaris ATV, and told him that he thought that it was stolen. In late December 2012, Harry Locatelli identified the Polaris ATV as his. Melendrez eventually contacted Breger about getting his money back. Breger gave him $100 and told Melendrez that defendant was the seller.
In early January 2015, Detective Jordan Brownlee went to defendant's residence and told him that he needed to speak to him about the Polaris ATV. There was a long pause of 12 to 15 seconds before defendant spoke. Detective Brownlee asked defendant to explain his side of the story. Defendant told him that he knew Breger and Breger had asked him a couple of months earlier if he could assist him in selling an item. According to defendant, Breger had obtained the Polaris ATV from "somewhere in the area of Vine Hill" and since he was more mechanically inclined than Breger, Breger needed someone to test drive it for the buyer. Defendant met Breger at his home. After defendant test drove the Polaris ATV, he drove Breger to a bank in Scotts Valley where they met the buyer, who then purchased the vehicle from Breger. Defendant was paid $100 and Breger still owed him $100 for test driving the vehicle. As defendant was speaking to Detective Brownlee, he hesitated a lot and he appeared nervous and frustrated.
The Polaris AVT had an automatic transmission and, according to Harry Locatelli, "[a]ll you have to do" to start the vehicle was turn the key.
Detective Brownlee also questioned defendant at the county jail. Defendant told him again that Breger was unable to operate the Polaris ATV, Breger needed him to operate it in order to show the buyer, and Breger still owed him an additional $100 for test driving the vehicle. Defendant also stated that he was not the owner of the Polaris ATV and he was unfamiliar with the DMV documents for the vehicle. During this interview, defendant appeared more relaxed.
Detective Brownlee spoke to Breger by telephone. Breger's version of events was very similar to Melendrez's version, but he was reluctant to identify the seller of the Polaris ATV. Detective Brownlee subsequently met Breger at a park in Boulder Creek. During their discussion, Breger remained "very apprehensive" about disclosing the identity of the seller. However, Breger "slipped" at one point and said defendant's name.
3. Evidence of Uncharged Offense
In June 2005, Bill Aragona, who was then the general manager of the Boulder Creek Golf and Country Club (club), was told that two golf carts were missing from the club. As Aragona was driving home, he saw one of the golf carts in a pickup truck. He followed the truck, which was driven by defendant, and called the sheriff. Aragona knew defendant because defendant lived near the golf course and had once worked for him. When Aragona asked defendant what he was doing with the golf carts, defendant replied, "It's a mistake. I thought they were junker[]s," and "I thought I had permission to take them." Aragona told him to return them. The golf carts were "relatively new."
The trial court took judicial notice of defendant's prior conviction for unlawfully driving or taking a vehicle. (Veh. Code, § 10851.)
B. Defense Case
Moyra Gibbons, defendant's mother, testified that defendant lived on their property and did "[o]dd jobs here and there." Defendant had three trucks. About a week before the police arrived, defendant brought the Chevrolet pickup truck to the property.
Gibbons went to the gas station where defendant said he had obtained the truck. She later gave the name Jason Neal to one of the officers. According to Gibbons, the note with Jason's name on it was not in defendant's handwriting. Gibbons also did not recognize the handwriting on the DMV documents used in the sale of the Polaris ATV.
Gibbons was present when officers came to talk to defendant a second time. Defendant did not appear nervous when he was speaking to the officers.
II. Discussion
A. Admissibility of Evidence of an Uncharged Offense
Defendant contends that the trial court erred when it admitted evidence of his prior conviction.
1. Background
The prosecutor brought a motion in limine seeking the admission of defendant's prior misdemeanor conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851) under Evidence Code section 1101. The prior conviction involved the theft of a golf cart from the club in 2005. The prosecutor's statement of facts asserted that defendant had claimed that he found the Polaris ATV in a ravine, and the prosecutor argued that the evidence was relevant to show knowledge, intent, and common scheme or plan. The trial court stated: "I'm going to permit this given the circumstances appears sufficiently similar to establish a common plan or scheme to take utility vehicles from uninhabited properties in the general vicinity where the subject crimes were committed and then attempt to explain them away by claiming that, at least in one of the charged counts, the vehicle was abandoned. And that Mr. Gibbons was taking it to salvage the vehicle or repair it. [¶] So those circumstances are sufficiently similar given what's involved in the subject cases and I'm going to permit the People to prove those facts up pursuant to Evidence Code Section 1101(b) to prove common plan, scheme or modus operandi."
The prosecution also sought to introduce evidence that defendant had been convicted of second degree burglary (Pen. Code, § 459). However, the trial court only instructed the jury regarding the unlawful taking or driving of a stolen vehicle.
After Detective Brownlee testified that defendant said that Breger was the one who had obtained the Polaris ATV, the trial court revised its earlier ruling and allowed admission of the evidence to show that defendant knew the vehicles were stolen. The following day, the trial court instructed the jury before it heard the other crime evidence that the evidence was only to be used to determine whether defendant knew that the vehicles were stolen. After Aragona testified and the trial court took judicial notice of defendant's prior conviction, the trial court again instructed the jury on the limited purpose of admission of the evidence: "[Y]ou can consider [the other crime evidence] for the limited purposes I've previously instructed you on. And again do not conclude from this evidence that Mr. Gibbons has a bad character or is disposed to commit crimes or theft offenses. You can consider it only for the purposes of deciding whether in this case as it relates to the charged offenses he knew that the property had been stolen when he allegedly acted in this case."
The trial court later discussed with the parties its intent to clarify its instructions. Over defense objection, the trial court stated that it would instruct the jury that the evidence of an uncharged offense was admissible to prove "knowledge as relates to the receiving stolen property count. And intent as relates to permanent or temporary depr[i]vation of possession of the property of the owner."
The jury was instructed pursuant to CALCRIM No. 375 in relevant part: "If you decide the defendant committed the [prior] offense, you may but are not required to, consider that evidence for the limited purpose of deciding whether or not . . . first, the defendant knew the property had been stolen when he allegedly acted in this case as it relates to the charged offenses of receiving stolen property. [¶] And, two, for the purpose of deciding whether or not he intended to deprive the owners of the vehicle of possession or ownership of the vehicle for any period of time as relates to the charged offenses of unlawful taking or driving a motor vehicle."
Shortly after the jury began its deliberations, the trial court noted it wanted to clarify its ruling regarding the admissibility of the uncharged offense evidence. It stated: "First of all, the instruction authorized the jury to consider the evidence for the purposes of knowledge . . . as relates to the possession of stolen property offense and intent as it relates to the [V]ehicle [C]ode offenses. I've engaged in the weighing process under Evidence Code [s]ection 352 to evaluate whether the probative value of that evidence outweighs the prejudicial effect. And given that knowledge is the key contested issue in the case, the evidence of the prior conviction is highly probative as it relates to the issue of knowledge. [¶] Particularly given Mr. Gibbons['s] assertion as to each of the vehicles that he was unaware of the stolen nature, stolen character of those vehicles as it relates to the pickup truck and the tractor. He explained to the investigating officer that he came into possession of those vehicles because Jason with no last name had given the vehicles to him to repair without any contact information for Jason. He explained . . . that he didn't know that the Gator was stolen because he had paid $2,000 for it despite he had no bill of sale and no contact information and no copy of the ad for sale, seller. As relates to the possession of the Polaris, he said he was unaware that was stolen because it was Mr. Breger was actually the person who possessed it and Mr. Breger simply asked him to be engaged in a test drive process. [¶] Given that the circumstances he explained were facially suspicious, the fact of his prior conviction is probative evidence he had knowledge that these possessions of similar type of vehicle in 2005 under conditions described by the testifying witness are such that [it would be] reasonable for the jury to infer that those circumstances being somewhat similar establishes that he had knowledge that in this case the vehicles were stolen. [¶] So it was for those reasons that I determined that that evidence was probative while it is somewhat prejudicial [but the] limiting instruction prevents the potential for misuse of the evidence."
2. Analysis
" 'Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) Thus, evidence may be admitted to prove, among other things, intent and knowledge. (Evid. Code, § 1101, subd. (b).)
" 'When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]' " (Fuiava, supra, 53 Cal.4th at p. 667.) Moreover, the probative value of the uncharged offense must be weighed against the danger "of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
" ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." [Citation.]' [Citation.]" (Fuiava, supra, 53 Cal.4th at pp. 667-668.)
At issue in the present case is the probative value of the evidence of the uncharged offense. We first consider whether this evidence was properly admitted to prove that defendant had the intent to deprive the owners of the pickup truck and the Polaris ATV of their possession of their property as required for a conviction under Vehicle Code section 10851, subdivision (a).
Vehicle Code section 10851, subdivision (a) provides in relevant part: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . ."
"To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (People v. Jones (2011) 51 Cal.4th 346, 371.) "The least degree of similarity is required to prove intent or mental state." (People v. Thomas (2011) 52 Cal.4th 336, 355.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
Defendant's prior conviction involved the theft of a golf cart from his previous place of employment. Defendant initially claimed that he thought he had permission to take the golf carts, but he later admitted the theft by pleading no contest to the charge. The Attorney General argues that the uncharged offense was sufficiently similar to the charged offenses to prove intent: defendant claimed a right to possess the pickup truck and the Polaris ATV; they involved utility vehicles; and defendant used his "mechanically inclined" ability to dispute his intent. Though defendant claimed a right to the golf cart, the pickup truck, and the Polaris ATV, neither a pickup truck nor a Polaris ATV is similar to a golf cart. Nor do we find persuasive the argument that defendant's mechanical ability was used to dispute his intent. While defendant claimed that he was repairing the truck, he did not claim that he intended to repair either the golf cart or the Polaris ATV. That defendant previously stole a golf cart does not tend to show that he intended to permanently or temporarily deprive the owners of their vehicles in the present case. Since the uncharged offense and the charged offenses were not sufficiently similar to support the inference that defendant had the same intent when the charged offenses were committed, the trial court abused its discretion in admitting evidence of the uncharged offense to prove intent as to counts 1 and 5.
Counts 2 and 3 charged defendant with receiving stolen property. Conviction of these counts required the prosecutor to prove that defendant knew that the tractor and the Gator were stolen. (Pen. Code, § 496d, subd. (a).)
Defendant relies on People v. Hendrix (2013) 214 Cal.App.4th 216 (Hendrix), which considered the degree of similarity required to prove knowledge. In Hendrix, the defendant was charged with resisting a police officer. (Id. at p. 221.) In the charged incident, the defendant was initially approached by a security officer, who sprayed him with mace. (Ibid.) He was later approached by police officers and resisted them. The defendant argued that he did not know the person he resisted was a police officer, because he had earlier been sprayed by a security officer, he was intoxicated, and the lighting was poor. (Id. at pp. 221-222.) The trial court admitted evidence of two prior incidents in which the defendant had resisted police officers. (Id. at pp. 225-226.) On appeal, the defendant challenged the admissibility of the uncharged offenses to show that he knew the person that he resisted was a police officer, who was performing his duty. (Id. at p. 221.)
Hendrix reasoned: "Whether similarity is required to prove knowledge and the degree of similarity required depends on the specific knowledge at issue and whether the prior experience tends to prove the knowledge defendant is said to have had in mind at the time of the crime. For example, knowledge of the dangers of driving while under the influence can be obtained through the general experience of having suffered a driving under the influence (DUI) conviction [citation], from the knowledge obtained in DUI classes [citations] or from the admonition required by Vehicle Code section 23593 upon a DUI-related conviction. While prior similar driving conduct and other similar circumstances would enhance the probative value, other crimes evidence may be admissible even though similar only in a general way, i.e., the prior events involve prior DUI offenses. This is so because in any of these examples, the evidence supports an inference that the defendant was aware of the dangers of driving while under the influence at later times when he or she drove." (Hendrix, supra, 214 Cal.App.4th at p. 241.) The Court of Appeal contrasted this example with the circumstances at issue in the case before it, that is, where "the knowledge element is akin to absence of mistake or innocent intent." (Id. at p. 242.) Hendrix concluded that "to establish knowledge when that element is akin to absence of mistake, the uncharged events must be sufficiently similar to the circumstances of the charged offense to support the inference that what defendant learned from the prior experience provided the relevant knowledge in the current offense." (Id. at pp. 242-243.) The Court of Appeal held that the admission of the evidence of the uncharged offenses was erroneous, because there was no evidence that security guards were involved in the prior incidents and thus it could not be inferred from those incidents that defendant had acquired the knowledge to distinguish police officers from security guards. (Id. at pp. 243-244.)
Defendant argues that, as in Hendrix, supra, 214 Cal.App.4th 216, "[t]here is no knowledge or information that [he] could have gained from his prior theft that would have enabled him to better perceive that the vehicles at issue here had been stolen." The Attorney General counters that "Hendrix makes a distinction without a difference as knowledge and intent, in this instance, are the same element."
Even assuming that the Attorney General is correct, the evidence of the uncharged offense was not sufficiently similar to the charged offense of possession of stolen property to prove intent or knowledge. The Attorney General argues that in the uncharged offense and the charged offenses: defendant claimed a right to possess the vehicles; the golf cart, the tractor, the Gator were utility vehicles; and defendant used his "mechanically inclined" ability to dispute intent or knowledge. Though defendant claimed a right to the golf cart, the tractor, and the Gator, neither the tractor nor the Gator is similar to a golf cart. Defendant also did not claim that he intended to use his mechanical abilities with respect to the golf cart, the Gator, or the tractor. That defendant previously stole a golf cart does not tend to show that he knew the tractor and the Gator were stolen. Accordingly, the trial court erred in admitting the prior crime evidence to show knowledge.
Though we have concluded that the trial court abused its discretion in admitting evidence of the uncharged offense to show intent as to counts 1 and 5 and to show knowledge as to counts 2 and 3, reversal is not required. The erroneous admission of evidence constitutes reversible error only if it resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) A reviewing court should declare a miscarriage of justice only when the court concludes it is reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Here, the evidence against defendant was extremely strong. It was undisputed that defendant was in possession of four stolen vehicles and his explanations as to how he came into possession of these vehicles lacked any credibility. Defendant claimed that he met "Jason," whose last name he refused to provide, at a gas station, and defendant offered to fix the truck. Though defendant had been using the truck to haul wood, defendant acknowledged that he had not yet notified the owner that it had been fixed. Law enforcement's repeated attempts to contact this individual based on the information provided by defendant were unsuccessful. In addition, there was evidence that the tractor had been removed by a trailer, and the tractor was on a trailer when it was discovered in defendant's possession. Defendant also came into possession of the tractor and the truck shortly after they were stolen. Regarding the Gator, defendant asserted that he had purchased it through Craig's List for $2,000, but he did not have title or transfer documents or any contact information for the seller. Moreover, there was evidence that defendant removed the Gator from Storey's property, because she was concerned that a stolen Gator would jeopardize her housing. As to the Polaris ATV, defendant's claim that he was more mechanically inclined than Breger and thus was to be paid $200 for test driving the vehicle for 15 minutes was not credible, since the Polaris ATV had an automatic transmission. In addition, Breger told Melendrez that he did not have the keys and Melendrez had to wait until defendant arrived for the test drive. Though defendant's role in the transaction was allegedly limited to a test drive, he accompanied Breger to the bank when Melendrez withdrew the purchase price. Breger also referred to defendant as the seller in discussing the transaction with law enforcement.
Defendant argues, however, that there was evidence that his explanation that he received the truck from "Jason" was true, because he had a piece of paper with Jason's phone number on it, the owner of the pickup believed that Jason Neal was involved with the theft of his truck, and Jason Neal was known to the police. Assuming that Jason Neal was involved with the theft of the truck, Jason Neal was known to associate with defendant and defendant did not provide Jason's last name to law enforcement despite his father's urging that he do so. This evidence indicated that defendant knew about the theft of the vehicle and thus did not assist the defense. Defendant also points out that none of the other items taken when the truck was stolen were found in defendant's possession. However, defendant was not charged with the theft of these items.
Defendant argues that his explanation that he bought the Gator through Craig's List was credible, because he provided his e-mail information to allow law enforcement to investigate the purchase and they failed to do so. Defendant has overlooked, however, that he did not have title or transfer documents establishing that he was the owner of the Gator. Defendant also argues that his explanation regarding the Polaris ATV was credible, because none of the other property taken when the Polaris was stolen were found in defendant's possession. We again note that defendant was not charged with the theft of these items. He also points out that his mother testified that the handwriting on the forged documents was not his, Breger received the money from Melendrez, and Breger gave Melendrez the forged documents. However, defendant was not convicted of obtaining money by false pretenses. Moreover, that Breger may well have been involved in criminal conduct does not tend to prove that defendant did not unlawfully drive or take the Polaris ATV.
In sum, it is not reasonably probable that defendant would have obtained a more favorable result absent evidence of the uncharged offense. (Watson, supra, 46 Cal.2d at p. 836.)
B. Motion for New Trial
Defendant contends that the trial court erred when it failed to conduct an evidentiary hearing on his ineffectiveness of counsel claim in his motion for new trial.
1. Background
Following trial, defendant retained new counsel. Defense counsel filed a motion for new trial in which he argued: (1) the trial court erred in denying the motion to suppress evidence; (2) the admission of defendant's prior crime evidence was erroneous; (3) trial counsel rendered ineffective assistance; and (4) juror misconduct. Defendant's ineffective assistance claim included allegations that former counsel had failed to properly investigate and prepare the case, failed to interview and call critical witnesses, and failed to advise him of his right to testify. Defendant also attached his own declaration.
At the hearing on the motion, the prosecutor noted that an ineffective assistance of counsel claim is not one of the grounds for a new trial under Penal Code section 1181. Relying on People v. Cornwell (2005) 37 Cal.4th 50 (Cornwell), the prosecutor argued that the trial court need not consider such a claim which was based upon matters not readily apparent from the courtroom proceedings. The trial court questioned the prosecutor about the portion of defendant's declaration in which he stated that "during the trial a juror approached the Judge to say he overheard officers talk about me, Mr. Gibbons, in the hallway. And that the juror needed to be excused because he had already formed an opinion as to guilt?" The prosecutor responded, "[F]rankly it didn't happen." The trial court agreed, "I'm not sure where that comes from. It seems to be something that a creation or wishful thinking on Mr. Gibbon's part. That, in fact, did not occur."
Cornwell, supra, 37 Cal.4th 50 was overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The trial court invited defense counsel to respond. Defense counsel requested permission to call former counsel "to address those issues" of ineffective assistance. The trial court denied the request: "I agree with [the prosecutor] that ineffective assistance is not a basis for a new trial. Particularly as it relates to matters not readily apparent to the trial court. [¶] And with respect to [former counsel's] performance during the trial, there was nothing which led me to believe that he did not aggressively and properly represent Mr. Gibbons. And conducted his defense with the standard of care [in] the community. [¶] Mr. Gibbons is entitled to effective counsel, not perfect counsel. In the sense they may have disagreed about strategy and whether or not Mr. Gibbons should or should not have testified, those are all tactical decisions and I think issues with respect to ineffective assistance are more properly addressed to an appellate court if you want to proceed in that fashion. [¶] It's not a statutory basis for a new trial. I'm not going to take evidence from the subjects and inject myself into the process. It goes beyond what was apparent to me throughout [former counsel's] handling of the case in both pretrial motions and the conduct of the trial itself."
Just after the trial court stated that it would deny the motion, defense counsel requested a short recess to review Cornwell, supra, 37 Cal.4th 50. The request was granted.
After the recess, the trial court acknowledged that it had discretion to consider "non statutory grounds" in ruling on a motion for new trial, but "the Cornw[e]ll case stands for the proposition that ineffective assistance of counsel need not be determined by the trial court unless they are of such that they were committed in the Court's presence." The trial court also stated: "Many of these claims that are asserted in Mr. Gibbons's declaration: Certainly didn't explain the potential exposure; never explained the nature of the charges; didn't keep him informed of the progress of the case; didn't go to the scene of the arrest to investigate whether or not the stolen property was, in fact, in plain view; didn't interview various witnesses. And these are all matters . . . which Mr. Gibbons asserts occurred. Just as he asserts that a juror addressed the Court and told the Court that the juror had already formed an opinion as to the defendant's guilt. That never occurred. And caused me to have grave doubts about the credibility of the other assertions made in [defendant's] declaration. [¶] So I really . . . don't believe that on a motion for a new trial, it's appropriate for the trial Court to hear every gripe a Public Defender client might have about how his case was handled when a trial went bad."
Defense counsel argued that since "the Court clearly does not give much credit to Mr. Gibbons's affidavit . . . I would think we should hear from [former counsel]." Defense counsel argued that hearing evidence would expedite the resolution of the issue and estimated that the testimony would "only take 15 minutes." The trial court responded: "I'm going to decline to do that. [¶] One of the additional requirements for raising a non statutory grounds for supporting a motion for a new trial, is defendant is required to establish that the - not only that the error denied the defendant a fair trial. But also the defendant had no earlier opportunity to raise the issue. And many of these claims are the type of claims that one would expect to refer in connection with a Marsden motion. [¶] And I heard no complaint from Mr. Gibbons whatsoever . . . as the case was progressing. I heard no complaints during the course of the trial from him about the adequacy of the representation. [¶] And I believe the complaints are being made now because he's unhappy with the result. [¶] And as I've mentioned previously, the defendant is entitled to adequate counsel, he's not entitled to perfect counsel. [¶] And there is nothing that occurred in my presence that I observed that I could say deprived Mr. Gibbons of fair trial or that he in any way suffered prejudice as a result of [former counsel's] representation."
After defense counsel argued that the defense could present additional witnesses who would corroborate defendant's assertions, the following exchange occurred: "[DEFENSE COUNSEL]: And is it my understanding that the Court - on the last issue of the right to testify, being a tactical decision by [trial counsel], therefore, it's not cognizable at this point? [¶] THE COURT: Yes. [Former counsel] and Mr. Gibbons's decision about whether Mr. Gibbons should or should not testify. I think Mr. Gibbons is asserting that [former counsel] never discussed with him the fact that he had a right to testify; is that the claim? [¶] [DEFENSE COUNSEL]: Yes, Your Honor. [¶] THE COURT: Again, I just don't find Mr. Gibbons credible on that issue. [¶] [DEFENSE COUNSEL]: Well, then we just ask to put [former counsel] on for that purpose, Your Honor. [¶] THE COURT: As an officer of the court, I'm going to ask you, [former counsel], did you inform Mr. Gibbons and discuss with him he had a right to testify if he wanted to? [¶] [FORMER COUNSEL]: I don't think I can answer that question right now without a waiver. [¶] THE COURT: So -- [¶] [DEFENSE COUNSEL]: It would be an implied waiver under the case law on that issue because we've raised it. [¶] THE COURT: I'm going to deny the motion for a new trial. [¶] I'm satisfied that Mr. -- everything that I observed, that [former counsel] was providing effective assistance of counsel. [¶] I'm not going to conduct an evidentiary hearing so Mr. Gibbons can cross-examine [former counsel] concerning the various complaints that he's developed after a jury found him guilty."
2. Analysis
People v. Carrasco (2014) 59 Cal.4th 924 (Carrasco) stated that " 'the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial' when the ' "issue of counsel's effectiveness can be resolved promptly at the trial level" ' and justice will be thereby be expedited. (People v. Cornwell (2005) 37 Cal.4th 50, 101 . . . .) ' "But our assumption has been that courts would decide such claims in the context of a motion for new trial when the court's own observation of the trial would supply a basis for the court to act expeditiously on the motion. . . . ' "It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so." ' (Ibid.)" [¶] In [People v.] Fosselman [(1983)] 33 Cal.3d 572, the prosecutor committed misconduct during trial that was observed by the trial court. (Id. at pp. 579-580.) We concluded that, in that circumstance, justice would be expedited by having the trial court that had witnessed the misconduct rule on whether counsel was ineffective in failing to object. (Id. at pp. 582-583.) By contrast, in Cornwell, we held that the trial court acted within its discretion in concluding the claim could not be readily resolved but rather should be litigated in a habeas corpus proceeding. (Cornwell, supra, 37 Cal.4th at p. 101.) The matter in Cornwell 'would have been delayed for at least six months while substitute counsel examined trial counsel's case records and performed additional investigation concerning witnesses who did not appear at trial and evidence that was not in the record, in order to decide whether to make a motion for new trial.' (Ibid.)" (Carrasco, supra, 59 Cal.4th at p. 981.)
In determining whether the trial court abused its discretion in failing to hold an evidentiary hearing, this court must consider " 'whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' " [Citation.] The appellant has the burden to demonstrate that the trial court's decision was "irrational or arbitrary," or that it was not ' " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" ' [Citation.]" (People v. Andrade (2000) 79 Cal.App.4th 651, 659.)
Here, the trial court's observations at trial did not provide a basis to resolve the ineffectiveness of counsel claim. Though resolution of the claim might have been easily resolved in a 15-minute hearing, the trial court did not abuse its discretion in failing to hold such a hearing. The trial court expressly found defendant's declaration not credible. This finding was supported by the statements of both the trial court and the prosecutor that a juror had not approached the trial court and stated that he had already formed an opinion as to defendant's guilt. Moreover, when it appeared that defendant's declaration was inadequate, defense counsel sought to admit new evidence, that is, former counsel's testimony. However, defense counsel failed to make an offer of proof that former counsel's testimony would have corroborated defendant's claim. Based on this record, the trial court's ruling was not irrational or arbitrary.
The substitution of attorney was filed on August 1, 2013. The hearing on the motion for new trial was held on November 5, 2013. Thus, defense counsel had ample time to determine former counsel's position as to defendant's claims.
Defendant also argues that the trial court based its refusal to hold an evidentiary hearing on an erroneous view of the law. He asserts that the trial court erroneously believed that "a defendant must make a Marsden motion or otherwise alert the court to counsel's ineffectiveness as a prerequisite to making a new trial motion on that basis." In our view, the trial court's comments did not indicate that a defendant was required to bring a Marsden motion in order to prevail on a motion for new trial. When read in context, the trial court was attempting to explain that defendant's claims reflected his disappointment with the verdict rather a deficiency in former counsel's performance.
People v. Marsden (1970) 2 Cal.3d 118.
C. Attorney's Fees
Defendant next contends that the trial court erred in requiring him to pay $1,000 in attorney's fees. He contends that there was insufficient evidence of either his ability to pay or of the costs incurred in his representation.
1. Procedures for Reimbursement of Public Defender Fees
Penal Code section 987.8 sets forth the procedures for determining the amount of reimbursement for public defender services that a defendant has received. Subdivision (c) of section 987.8 requires a court to determine a defendant's ability to pay such fees when, as occurred in the present case, a defendant hires private counsel to replace a public defender or it appears that the defendant has sufficient assets. "In any case in which the defendant hires counsel replacing a publicly provided attorney; . . . or, in which the defendant, at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant's ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision." (§ 987.8, subd. (c).)
All further statutory references are to the Penal Code unless otherwise stated.
Section 987.8, subdivision (b) provides that "upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings." (§ 987.8, subd. (b).)
Section 987.8, subdivision (g)(2) defines a defendant's ability to pay these fees: " '[a]bility to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
2. Background
Prior to sentencing, the probation officer evaluated defendant's ability to pay attorney's fees. The probation officer noted that defendant: was 34 years old and had "many health issues that make it difficult for him to get around" due to an injury that he had incurred on a dirt bike approximately four years ago; was receiving state disability payments of $623 per month; and was certified as an electrician and belonged to Local 332 union. There were also letters from family members and friends attached to the probation report. A teacher referred to the "hours of cleaning, painting, moving furniture, and decorating" that defendant provided in setting up her classroom in the last two years. Defendant also assisted her with vehicle maintenance and repair. Another individual acknowledged that she did not know defendant well, but "he appear[ed] to be an eager hardworking young man" from whom she had purchased firewood "on occasion." His parents referred to two "senior ladies" for whom he would provide assistance with chores "whenever they call." One of defendant's friends stated that defendant transported him to doctor's appointments, ran errands for him, provided him with firewood, and maintained his truck. The probation officer recommended that defendant be ordered to pay all or a portion of the court-appointed attorney's fees.
At the sentencing hearing, the trial court stated that it had evaluated defendant's "ability to pay, given the bail bond that you've posted in the case and hiring private counsel," and ordered him to pay "$2,500 to the County of Santa Cruz for reimbursement of the Alternate Public Defender's Office fees and representation through trial." Defense counsel objected based on defendant's inability to pay and requested a hearing. Defense counsel stated that defendant's family hired him and defendant's income was limited to supplemental security income (SSI) and "occasional" work as a mechanic. The trial court set the matter for a hearing. The trial court also noted: "My impression, one of the things I'll be taking into account is, he lives with his parents on this compound in Boulder Creek, they provide him with housing, they provide him with child support, they provide him with necessities of life, which included hiring counsel and posting bail bonds. I'm presuming that they also, given the nature of the property there, from time to time may employ him for handyman-type services, mechanical services and the like. So I have a sense that he's earned income under the table through a variety of different means. Hopefully not all of which are illegal."
The trial court began the hearing on defendant's ability to pay attorney's fees by noting that the Sheriff's Department had defendant in a program in which he would be monitored electronically at home. The trial court also stated that it had presided over defendant's trial and all other proceedings with the exception of the preliminary hearing. The trial court found that "the reasonable value of attorney services that were provided, if they had been performed by private counsel, would have been well in excess of $10,000." The trial court continued: "I've observed that he posted a $5,000 bail bond when he was initially arrested and arraigned and then subsequently posted $100,000 bail bond when I remanded him into custody . . . after the jury's verdict in the case. [¶] And he's retained private counsel. So facially it appears he has the resources to reimburse the county for Public Defender services."
Defense counsel pointed out that defendant's parents posted his bond and retained him. He also stated that defendant's two sons had recently been in a car accident and defendant was "buried with medical bills" and was unable to perform any physical work due to his foot injury.
However, defendant told the probation officer that he had one son and referred to one son in his letter to the trial court. Defendant's parents' letter to the trial court also indicated that defendant had one son.
The trial court stated: "If his parents are willing to supply for him when it comes to posting bail bonds, hiring private counsel, I'm sure they're also engaged in defraying other expenses such as childcare and the like such that a portion of this supplemental Social Security income could be used to make monthly payments towards attorney fees." The trial court also noted that defendant "was performing odd jobs, mechanical work, for friends with mechanical problems on their vehicles as well."
Defendant's mother stated that defendant lived on their property without paying rent, but that he paid for food, gasoline, and propane. The trial court noted that since defendant would be serving his one-year jail condition at home and traveling only to medical appointments or, if authorized, to pick up his son from school, his gasoline expenses would not be significant. The trial court then ordered defendant to pay attorney's fees of $1,000 "based upon all the Court's files and records in the case, and representations previously made by Mr. Gibbons concerning his ability to work in the past which relates to his ability to work in the future when he completes his custody commitment, and the fact that he has, is living rent free."
3. Analysis
Defendant argues that the trial court erroneously considered his employment prospects more than six months after the date of the hearing in violation of section 987.8, subdivision (g)(2)(B). As a condition of his probation, defendant was ordered to serve 365 days on home electronic monitoring and the trial court referred to defendant's ability to work "when he completes his custody commitment." However, the trial court's ruling on defendant's ability to pay was not based solely on defendant's future financial position. The trial court's comments throughout the hearing establish that its ruling was based on evidence that defendant was able to perform work at home and his expenses were limited. Though there was evidence that defendant was receiving only $623 per month in SSI, his mother testified that he received income from "[o]dd jobs here and there" and mechanical work on vehicles on the property. Deputy Gutzwiller's observation of multiple motorcycles in various stages of being disassembled corroborated her testimony that defendant worked on vehicles at his home. Defendant himself claimed that he had been repairing the stolen pickup truck at his home. Letters submitted by defendant's family and friends also established that defendant was able to work despite his disability. Since defendant's expenses were limited to those for food, propane, and gasoline and his family paid for private counsel and bail, there was sufficient evidence to support the trial court's finding of defendant's ability to pay attorney's fees of $1,000.
Defendant also argued in his opening brief that there was insufficient evidence to support the trial court's calculation of the reimbursement cost. People v. Aguilar (2015) 60 Cal.4th 862, which was decided after defendant's opening brief was filed, concluded that even where there is no evidence of actual costs, "the court having presided over the four-day jury trial . . . was in a position to make, and did make, an implied finding that counsel rendered legal services costing at least equal the amount of fees imposed." (Id. at p. 869.) Here, the trial court presided over a four-day trial as well as other proceedings. In light of Aguilar, defendant concedes that the trial court properly calculated the amount of attorney's fees based on its own observations of the legal services rendered.
D. Former Section 1202.5
Defendant argues, and the Attorney General concedes, that the trial court erred in imposing a theft fine of $120.
Though the trial court did not state statutory authority for the theft fine, the minute order states that it was imposed pursuant to former section 1202.5.
Former section 1202.5, subdivision (a) specified the offenses for which this fine might be imposed: "(a) In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed." (Former § 1202.5.)
Here, defendant was convicted of Vehicle Code section 10851 and section 496d. Since these offenses were not enumerated in former section 1202.5, the trial court erred in imposing the theft fine.
Relying on People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), the Attorney General notes that defendant "arguably forfeited this claim when he failed to object at the time the fine was imposed." Trujillo did not involve an unauthorized fine or fee. Moreover, as the Attorney General acknowledges, Trujillo quoted People v. Scott (1994) 9 Cal.4th 331, 335, which stated: " 'Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention.' " (Trujillo, at p. 858.) Here, imposition of a fine which is not applicable to the offense is not a "permissible sentencing choice[]," and thus, defendant did not forfeit his claim. --------
III. Disposition
The order is reversed. On remand, the trial court is directed to strike the theft fine of $120.
/s/_________
Mihara, J.
I CONCUR: /s/_________
Márquez, J.
I CONCUR IN THE JUDGMENT ONLY: /s/_________
Bamattre-Manoukian, Acting P. J.