Opinion
G060574
10-26-2022
THE PEOPLE, Plaintiff and Respondent, v. ERIC WILLIAM PEPPER, Defendant and Appellant.
Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 18CF3384 Jacki C. Brown, Judge. Affirmed in part, reversed in part, and remanded.
Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MARKS, J. [*]
Following a jury trial, Eric William Pepper was convicted of receiving stolen property. (Pen. Code, § 496, subd. (a).) The trial court placed Pepper on formal probation with various terms and conditions, including that he pay victim restitution and pay the costs of probation supervision. Pepper contends: (1) the court committed prejudicial error by refusing to give a pinpoint instruction; (2) his felony conviction must be reduced to a misdemeanor because the jury did not find the stolen property was worth more than $950; (3) his statement to a sheriff's department investigator should have been suppressed because it resulted from custodial interrogation in the absence of warnings required under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (4) the restitution order should be stricken; and (5) any probation services fees imposed by the court must be vacated. We conclude Pepper's conviction must be reduced to a misdemeanor because the jury failed to return a finding that the stolen property's value exceeded $950, and we remand the matter for resentencing. We address Pepper's contentions concerning his probation conditions because these issues are likely to arise at the new sentencing hearing; we conclude the restitution order was proper but the court lacked authority to impose any probation supervision fees. We reject Pepper's remaining contentions.
Subsequent statutory references are to the Penal Code unless otherwise stated.
FACTS
In December 2018, Pepper lived in a studio apartment attached to a garage behind a house in Buena Park. At the time, he was letting Jeremiah Hernandez, who had been recently paroled after serving 20 years in prison, stay with him and drive his car, a black Land Rover.
On December 2, 2018, Pepper waited for Hernandez to return with the Land Rover because he had promised a friend he would try to fix her car, which was broken down in a Brea parking lot. Hernandez did not return until about 1:00 a.m. on December 3. When he returned, Pepper told Hernandez that Pepper needed to go look for his friend's car. The plan was for Hernandez to drive because Pepper's license was suspended. Hernandez suggested that while they were out looking for the car, they dispose of trash from the front house that had accumulated by the garage. Before leaving, Pepper and Hernandez loaded bags of trash into the Land Rover.
They searched for the car belonging to Pepper's friend but were unable to find it. Hernandez said he knew a place to dump the trash and that he had to go take care of something. Hernandez drove up to the gate for a parking garage on the ground floor of an apartment complex. The gate opened, and Pepper assumed Hernandez had a "clicker" to open it.
A surveillance camera captured their actions inside the garage. Hernandez drove into the garage and parked next to a minivan owned by G.M. Pepper got out of the car, unloaded the bags of trash, and placed them in a bin. After putting the trash in the bin, Pepper returned to the car and sat in the passenger seat.
Meanwhile, Hernandez got out of the car, went to the minivan, opened the back of it, removed a wheelchair, and placed it in the Land Rover. The wheelchair was custom made for G.M.'s young disabled daughter. The wheelchair was about a year old and G.M.'s insurance had paid about $9,800 for it. Hernandez went to another locked car in the garage and returned to the Land Rover with a folder that contained important papers belonging to the car's owner and her family, including birth certificates and social security cards.
At first, Pepper did not know what Hernandez was doing. He thought Hernandez might have an arrangement regarding the wheelchair. However, sitting in the passenger seat, Pepper realized Hernandez was taking items from the cars in the garage, and Pepper did not want to be involved. When Hernandez got into the car, he told Pepper not to worry. Pepper told Hernandez he did not want any part of it.
Hernandez drove back to Pepper's residence. Pepper went inside, and Hernandez brought in the wheelchair. Hernandez cleaned the wheelchair and disassembled it, while Pepper laid down. Hernandez again borrowed Pepper's car and left.
Later that morning, G.M. realized her daughter's wheelchair was missing from her minivan, and she called the police. Orange County Sheriff deputies responded and obtained video of the incident from the garage's surveillance camera. Deputies found the trash Pepper had unloaded into the bins, and within the trash, they found information that led them to Pepper's residence.
That evening, Buena Park officers detained Pepper, Hernandez, and another man outside of Pepper's residence. Orange County Sheriff's Department Investigator Nguyen arrived and questioned Pepper without advising him of his Miranda rights. Pepper was cooperative, told Nguyen the wheelchair was in his room, and consented to a search of his residence and vehicle. During the search, Nguyen found the wheelchair disassembled on Pepper's bed, and his partner found the stolen folder of documents in the Land Rover.
The folder and its contents were returned its owner. Although the wheelchair was returned to G.M., it was no longer in a safe, operable condition for her daughter.
Pepper told Nguyen what had happened earlier that morning in the apartment complex's garage and that he did not initially realize what Hernandez was doing. Pepper denied knowing Hernandez was going to steal items from the vehicles and denied any involvement in the thefts.
Pepper was arrested and charged with grand theft of the wheelchair (§ 487, subd. (a); count 1), receiving stolen property based on his possession of the stolen wheelchair (§ 496, subd. (a); count 2), and petty theft of the folder of documents (§§ 484, subd. (a), 488; count 3).
The matter proceeded to a jury trial. At trial, Pepper testified as to the events that transpired on December 3, 2018. He testified that when he woke up that day, he saw the pieces of the wheelchair sitting in the middle of his studio apartment. He moved the pieces and placed them on his bed.
Pepper testified he was afraid of Hernandez because of Hernandez's behavior after they were arrested. A few days after their arrest, Pepper bailed out of jail. While Pepper was out on bail, Hernandez called him from jail and asked Pepper to accept responsibility for the crime; Pepper refused. Pepper also received a threatening text message from Hernandez, and Pepper's residence was burglarized by individuals he believed were connected to Hernandez.
The jury found Pepper guilty of receiving stolen property but not guilty of grand theft or petty theft. The jury failed to return a finding that the stolen property Pepper received was worth more than $950.
At sentencing, the court suspended imposition of sentence and placed Pepper on formal felony probation. The court imposed several terms and conditions of probation, including that Pepper complete 50 hours of community service. The court ordered Pepper to pay victim restitution for the replacement cost of the wheelchair and stated Pepper "may have to pay the cost of formal probation as directed by [his] probation officer." Pepper timely appealed.
DISCUSSION
I. Failure to Give the Defense Pinpoint Instruction
Pepper contends the court committed reversible error by refusing to give a defense requested pinpoint instruction in its charge to the jury and during deliberations when the jury requested a further definition of control. We disagree.
A. Background
During the jury instruction conference, the defense requested the court give a pinpoint instruction on receiving stolen property in addition to CALCRIM No. 1750, the pattern instruction on the offense. The pinpoint instruction requested by the defense contained three statements: (1) "There is no legal duty to report to the authorities that another person is guilty of the crime of receiving stolen property. [(2)] It is not a crime to be present or live at a location where there is stolen property, knowing that such property is stolen unless one commits an affirmative [act] to conceal the fact. [(3)] The act of touching or moving stolen property with the knowledge that the property is stolen is not by itself an offense unless the acts are done for the purpose of buying, selling, receiving, withholding, or concealing stolen property or assisting someone else in buying, selling, receiving, withholding, or concealing stolen property."
The court agreed to add the first statement in the pinpoint instruction to CALCRIM No. 1750. However, the court explained it was not going to give the remaining portions of the requested defense instruction because the court believed the pattern instruction provided the jury with "appropriate information as to how to determine possession and control."
The court modified CALCRIM No. 1750 and instructed the jury on the offense of receiving stolen property as follows: "The defendant is charged in count 2 with receiving stolen property, in violation of Penal Code section 496(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] [1.] The defendant received property that had been stolen; [¶] AND [¶] [2.] When the defendant received that property, he knew that the property had been stolen; [¶] AND [¶] [3.] The defendant actually knew of the presence of the property. [¶] Property is stolen if it was obtained by any type of theft. [¶] To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people can possess the property at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. [¶] If you find the defendant guilty of receiving stolen property, you must then decide whether the value of the property received was more than $950. If you have a reasonable doubt whether the property received has a value of more than $950, you must find this allegation has not been proved. [¶] There is no legal duty to report to the authorities that another person is guilty of the crime of receiving stolen property."
During deliberations, the jury sent out a note stating: "We would like to know if we [are] able to get a further definition of 'control' or right to control in count [2], Receiving Stolen Property and Related Instructions." When the court discussed the jury's question with the parties, the defense requested the court's response include the remaining portions of the pinpoint instruction proposed earlier by the defense. The court refused the request, explaining it did not want to give "pinpoint factual instructions since the determination of facts is a jury responsibility" and did "not want to highlight one instruction over others." Instead, the court responded by simply referring the jury back to CALCRIM No. 1750.
B. Court's Refusal to Give Portions of the Pinpoint Instruction in its Charge to Jury
A trial court must instruct the jury on the essential elements of the offense (People v. Merritt (2017) 2 Cal.5th 819, 824) and instruct the jury on "'general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case'" (People v. Simon (2016) 1 Cal.5th 98, 143). This means that under certain circumstances "'"a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case ...."' [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 220.)
"Pinpoint instructions '"relate particular facts to a legal issue in the case or 'pinpoint' the crux of a defendant's case."' [Citation.]" (People v. Lyon (2021) 61 Cal.App.5th 237, 252.) A defendant is "entitled to legally correct and factually warranted pinpoint instructions." (Ibid.) "'Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense . . . if the theory proffered by the defendant is supported by substantial evidence' [citation], the instruction is a correct statement of law [citation], and the proposed instruction does not simply highlight specific evidence the defendant wishes the jury to consider [citation]. [¶] The trial court may properly refuse an instruction highlighting a defense theory if it is 'duplicative or potentially confusing.' [Citation.] '[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused.' [Citations.]" (People v. Jo (2017) 15 Cal.App.5th 1128, 1174.)
Pepper contends the court erred by refusing to give the two statements in the pinpoint instruction when the court instructed the jury on the charge of receiving stolen property. He asserts the statements in the pinpoint instruction were needed to clarify principles inadequately stated in the pattern CALCRIM No. 1750 instruction. We review this claim of instructional error de novo. (People v. Lyon, supra, 61 Cal.App.5th at p. 253.) Doing so, we conclude there was no error. The principles stated in the refused pinpoint instruction were adequately explained by CALCRIM No. 1750.
Recently, our Supreme Court applied an abuse of discretion standard where the trial court found a pinpoint instruction duplicative and denied a defense request to instruct with it. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 497.) Here, both parties assert the de novo standard of review applies to the issue of whether the court should have given the pinpoint instruction in its charge to the jury. While an abuse of discretion standard may be appropriate, because the Attorney General has not argued a different standard applies, we analyze Pepper's claim under the de novo standard. (See People v. Brugman (2021) 62 Cal.App.5th 608, 622, fn. 3.)
Pepper contends the court erred because it failed to instruct the jury with the following statement from his proposed instruction: "It is not a crime to be present or live at a location where there is stolen property, knowing that such property is stolen unless one commits an affirmative [act] to conceal the fact." (Italics added.) This statement might apply to the separate offense of concealing stolen property, but the issue of concealment was not argued by the prosecution. (See People v. Brown (2019) 32 Cal.App.5th 726, 732 ["'[r]eceiving stolen property and concealing stolen property are separate offenses'"].) Instead, the prosecution proceeded on the theory Pepper was guilty of receiving stolen property. The court properly refused to give this portion of the pinpoint instruction.
Moreover, the proposition that it is not a crime to be present or live at a location where there is stolen property was adequately covered by CALCRIM No. 1750, which told the jury "[t]o receive property means to take possession and control of it" and "[m]ere presence near or access to the property is not enough." From CALCRIM No. 1750, a reasonable juror would understand Pepper could not be convicted of receiving stolen property merely because there was stolen property in his residence or simply because he had access to the stolen property. The instruction permitted defense counsel to argue the mere presence of the stolen property in Pepper's residence was "not enough" to convict him of the offense. Thus, the trial court's refusal to give the second statement in the pinpoint instruction was not error.
Nor did the court err by refusing to instruct the jury with the third statement in the defense pinpoint instruction. This statement provided: "The act of touching or moving stolen property with the knowledge that the property is stolen is not by itself an offense unless the acts are done for the purpose of buying, selling, receiving, withholding, or concealing stolen property or assisting someone else in buying, selling, receiving, withholding, or concealing stolen property." CALCRIM No. 1750 adequately expressed this principle. The instruction given the jury did not permit a conviction for receiving stolen property based only on the act of touching or moving stolen property with knowledge the property is stolen. The jury was properly instructed that in order to convict, it had to find Pepper had taken possession and control of the stolen property with the knowledge it was stolen. CALCRIM No. 1750 informed the jury that "[a] person does not have to actually hold or touch something to possess it." A reasonable juror would not have believed the inverse was true-that simply holding or touching stolen property equated to possession and control.
Pepper contends the trial court should have given the pinpoint instruction's second and third statements because a juror might construe CALCRIM No. 1750 to believe that "someone who knows stolen property is in his home and does not take steps to keep it out or have it removed, and who touches or moves it, is necessarily guilty of receiving stolen property ...." We disagree. It is not reasonable that a juror would have construed the instruction in the manner Pepper suggests. The instruction given the jury adequately advised it of the elements of the offense, and the court properly refused to give the pinpoint instruction.
C. Trial Court's Response to Jury's Question
Pepper also contends the court erred by refusing to give the pinpoint instruction after the jury requested "a further definition of 'control' or right to control." We disagree.
Section 1138 states that after the jury has retired to deliberate, if it desires "to be informed on any point of law arising in the case, . . . the information required must be given ...." "'This means the trial "court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]" [Citation.]'" (People v. Montero (2007) 155 Cal.App.4th 1170, 1179.) "But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) If the jury exhibits confusion over the meaning of a term, the court may be required to define the term. (People v. Montero, supra, 155 Cal.App.4th at p. 1179.)
A trial court's decision to provide or not provide further instruction in response to a jury inquiry is reviewed for an abuse of discretion. (People v. Doane (2021) 66 Cal.App.5th 965, 980.) Here, the court explained it was not going to give the proposed pinpoint instruction in response to the jury's question because it did "not want to highlight one instruction over [the] others." The court was also concerned that responding to the jury's question with the pinpoint instruction might intrude upon the jury's responsibility to determine the facts. The court's decision to instead refer the jury back to CALCRIM No. 1750 was not an abuse of its discretion.
As discussed above, CALCRIM No. 1750 adequately informed the jury of the elements of the offense. The terms control or right to control in the pattern instruction are not technical terms peculiar to the law. The jury was to apply these terms according to their common everyday usage. The jury made a single inquiry requesting a further definition of these terms and did not appear confused as to their common meaning. Thus, the court was not required to define the terms for the jury. The court fulfilled its duty under section 1138 by advising the jury to reread CALCRIM No. 1750, which adequately informed the jury of the elements of the receiving stolen property offense. (See People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [where court advises jury to reread original instruction that is "full and complete," court fulfills its section 1138 obligation].) Understandably, the court was reluctant to answer the jury's question with the statements in the pinpoint instruction because neither statement directly defined control and therefore did not answer the jury's question. Thus, we reject Pepper's claim of instructional error.
II. Failure to Make a Finding Regarding the Value of the Stolen Property Received
Pepper brings to our attention the jury's failure to return a finding that the stolen property he received was worth more than $950. The jury was required to make a special finding as to the value of the stolen property because under section 496, subdivision (a), the offense of receiving stolen property is a misdemeanor if the value does not exceed $950 (except for some ineligible individuals and Pepper was not one of them). Thus, the special finding determines the degree or seriousness of the offense. Pepper asserts because the jury failed to make the necessary finding, his felony conviction must be reduced to a misdemeanor. The Attorney General does not dispute that the jury failed to make the required finding but asserts the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, given the undisputed evidence concerning the value of the wheelchair. We conclude the jury's failure to return a finding the stolen property was worth more than $950 was a fatal defect and under section 1157, Pepper's conviction must be reduced to a misdemeanor.
Section 496, subdivision (a), provides that "[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, . . . shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
Pepper was charged with a felony violation of receiving stolen property (§ 496, subd. (a)). The trial court recognized the need for the jury to determine whether Pepper received stolen property worth more than $950. During the jury instruction conference, the court advised the parties the jury should be given a separate verdict form to return on the allegation that the value of the stolen property exceeded $950. In the instruction on the charge of receiving stolen property, the jury was informed that if it found Pepper guilty of receiving stolen property, it "must then decide whether the value of the property received was more than $950." The jury was further instructed if it had "a reasonable doubt whether the property received [had] a value of more than $950, [it] must find this allegation [had] not been proved." The jury was given guilty and not guilty verdict forms for the charge of felony receiving stolen property and given separate forms for the determination of whether it was true or not true that the stolen property was worth an amount over $950.
The forms for the allegation stated: "We the jury in the above-entitled action, find [TRUE] [NOT TRUE] the allegation that the stolen property alleged in Count 2 (Receiving Stolen Property) is worth an amount greater than $950."
The jury returned the verdict form finding Pepper guilty of "felony" receiving stolen property but the jury did not return a finding as to whether the stolen property received was valued over $950. Neither the court nor the parties noted the jury's failure to sign either special finding form regarding the value of the stolen property. At sentencing, the court imposed felony probation.
The jury's failure to return a finding on the value of the stolen property means Pepper was not properly convicted of a felony violation of section 496, subdivision (a), and requires his conviction be reduced to a misdemeanor. "When . . . the trier of fact fails to make a finding the effect is the same as a finding of 'not true.' [Citation.]" (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440; see In re Candelario (1970) 3 Cal.3d 702, 706 [silence operates as a finding that the prior conviction allegation was not true]; People v. Huffman (1967) 248 Cal.App.2d 260, 261 ["Since no finding was made by the court as to the alleged prior conviction as required under . . . section 1158, the court's silence operates as an acquittal of the charge of the prior conviction"].)
When a jury fails to make a finding regarding the value of stolen property, which determines the degree of a theft, benefits accrue to the defendant under section 1157 and a felony conviction must be reduced to a misdemeanor. (People v. Love (2008) 166 Cal.App.4th 1292, 1300-1301.) Section 1157 states that when a crime is distinguished into degrees, the trier of fact "must find the degree of the crime." If the trier of fact does not determine the degree of the crime, then the crime "shall be deemed to be of the lesser degree." (§ 1157.) "Section 1157 applies 'whenever the jury neglects to explicitly specify the degree of the crime' in the verdict form. [Citations.]" (People v. San Nicolas (2004) 34 Cal.4th 614, 634.) "'[T]he key is not whether the "true intent" of the jury can be gleaned from circumstances outside the verdict form itself; instead, application of [section 1157] turns only on whether the jury specified the degree in the verdict form.' [Citation.]" (Id. at pp. 634-635.) "The purpose of section 1157 is to ensure that the jury's determination of degree is clear when a verdict of varying degrees is permissible [citation], so that the defendant is protected from the risk that the degree of the crime could be increased after the judgment [citation]." (People v. Selivanov (2016) 5 Cal.App.5th 726, 756.)
Section 1157 applies to theft (People v. Love, supra, 166 Cal.App.4th at p. 1301), which is divided into degrees-grand theft and petty theft (§ 486). Based on the amendments Proposition 47 (the “Safe Neighborhoods and Schools Act”) made to theft offenses and the offense of receiving stolen property, we conclude section 1157 applies to section 496, subdivision (a). The changes Proposition 47 made to section 496, subdivision (a), divided the offense of receiving stolen property into degrees. Previously, “receiving stolen property worth $950 or less was . . . a ‘wobbler' offense, i.e., a crime punishable as either a felony or a misdemeanor. As a result of Proposition 47, the statute now dictates that ‘the offense shall be a misdemeanor.' [Citation.]” (People v. Orozco (2020) 9 Cal.5th 111, 117.) Proposition 47 aligned felony and misdemeanor receiving stolen property with grand and petty theft by creating a demarcation between the degrees of both offenses based on the value of the stolen property. Following Proposition 47, if the stolen property is valued at more than $950, the offense (theft or receiving stolen property) may be a felony, but if the value of the stolen property does not exceed that amount, the offense must be a misdemeanor, except for some ineligible individuals. (§ 496, subd. (a); § 490.2, subd. (a).)
We find instructive the application of section 1157 in People v. Love, supra, 166 Cal.App.4th 1292. In Love, the defendant was convicted of grand theft under section 484g, subdivision (a), and embezzlement under section 508. (Love, at p. 1300.) Both offenses were punishable as grand thefts if the value of the property exceeded $400 (the value was subsequently increased to $950); otherwise, the offenses were punishable only as petty thefts. (Ibid.) The jury in Love, however, made no findings as to the value of the items stolen. (Id. at p. 1301.) The Court of Appeal agreed with the parties that section 1157 applied and reduced the defendant's felony convictions to misdemeanors. (Ibid.)
Given that the value threshold separating grand theft from misdemeanor petty theft is the same as that separating felony and misdemeanor receiving stolen property, it follows that receiving stolen property is likewise divided into two degrees and section 1157 applies to the offense of receiving stolen property. Here, the value of the stolen property received was a question of fact for the jury to determine and its determination would have established the degree of the offense. The jury, however, failed to return a finding regarding the value of the stolen property received and therefore did not find the degree of the crime, as required under section 1157.
We cannot say this error was remedied by the combination of instructions and verdict forms given the jury. For the charge of receiving stolen property, the jury was provided two verdict forms: a guilty verdict form for felony receiving stolen property and a not guilty form for felony receiving stolen property. Neither of the felony verdict forms mentioned the dollar value of $950. Instead, the jury was given separate forms to return on the value allegation.
The jury was not provided verdict forms for misdemeanor receiving stolen property.
The verdict returned by the jury stated: "We the jury in the above-entitled action, find the Defendant . . . GUILTY of Section 496(a) of the PENAL CODE . . . (Receiving Stolen Property), as charged in COUNT 2, a felony." The term "felony" in the general verdict form was not defined for the jury in the instruction on the receiving stolen property offense. Nor was the jury instructed that it should only return a verdict of guilty on the felony receiving stolen property charge if they found the value of the property received exceeded $950. Thus, we cannot read the use of the term "felony" in the general verdict form as meaning the jury found the stolen property Pepper received was worth more than $950. Instead, the jury was instructed to determine whether Pepper committed the offense without regard to the value of the stolen property received and only if they found him guilty of the offense were they to determine whether the special allegation concerning the value of the property had been proved. The instructions, verdict forms, and allegation forms provided to the jury permitted the jury to find Pepper guilty of receiving stolen property and then determine the value of the stolen property received, resulting in either a felony or misdemeanor conviction.
The Attorney General acknowledges the jury was properly instructed but failed to return a finding on the value special allegation. We reject the Attorney General's contention this error is subject to harmless error analysis under Chapman v. California, supra, 386 U.S. at page 24. Because the jury failed to make a finding that determined the degree of the receiving stolen property offense, the statutory mandate of section 1157 was not met and Pepper's felony conviction for receiving stolen property must be deemed a misdemeanor. We remand the matter to the trial court for resentencing.
III. Admission of Pepper's Un-Mirandized Statement
Pepper contends the trial court should have suppressed his statement to Investigator Nguyen because he was subjected to custodial interrogation without being advised of his Miranda rights. Pepper recognizes this claim was not raised below and argues if we conclude his claim was not preserved for appeal, his trial counsel rendered constitutionally deficient assistance. The Attorney General makes two arguments in response. First, the Attorney General argues Pepper forfeited his Miranda claim by failing to raise it below. Second, the Attorney General asserts Pepper has not shown his trial counsel was ineffective for failing to raise this issue in the trial court. We agree with the Attorney General on both points.
A. Background
Prior to trial, the defense filed a section 1538.5 motion, alleging a violation of Pepper's rights under the Fourth and Fourteenth Amendments. The motion focused on the lawfulness of Pepper's detention and whether his consent to the search of his residence and vehicle was freely and voluntarily given. The motion sought suppression of Pepper's statements "following his illegal detention" and evidence obtained during the search.
One paragraph in the motion mentioned Miranda. In that paragraph, the defense asserted Pepper gave consent for the search "during a custodial interrogation, without any Miranda warnings" and argued Pepper's consent for the search was involuntary and "unlawfully obtained in violation of Miranda." These were the only references to Miranda in the motion and were relevant to the issue of whether Pepper freely consented to the search. (See People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558 [whether Miranda warnings have been provided is a factor that can be considered in determining whether consent to search was freely given].) The motion did not seek suppression of Pepper's statements under the Fifth Amendment to the United States Constitution.
An evidentiary hearing was held on the section 1538.5 motion. Consistent with the written motion, the hearing focused on the validity of Pepper's detention and his consent to the search; Miranda was only briefly discussed. The evidence at the hearing established Buena Park police officers detained Pepper for more than 45 minutes on the curb outside his residence, while they waited for investigators Nguyen and Char to arrive. At the hearing, Nguyen testified the first thing he said to Pepper was that he wanted the wheelchair back. When the prosecutor inquired of Pepper's response to Nguyen, the defense objected, citing Miranda. The court sustained the objection but permitted the prosecution to lay a foundation concerning the circumstances surrounding the questioning.
Argument at the conclusion of the hearing focused on whether the detention was lawful and Pepper's consent to the search was freely given. The prosecutor also argued Miranda did not apply when the investigators interviewed Pepper because he was not in custody. The defense did not reference Miranda in its oral argument at the conclusion of the hearing. The court denied the section 1538.5 motion. Explaining its ruling, the court stated it did not view the detention as prolonged and Pepper had signed the consent form for the search. The court briefly touched on Miranda, stating "as far as Miranda goes, I haven't heard one stitch of evidence to say that the investigators were over bearing, coercive, threatening, restraining, coercing. [Pepper] wasn't handcuffed. The questioning was not compulsive."
B. Forfeiture
We agree with the Attorney General that Pepper forfeited his Miranda claim by failing to raise it below. "'A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; . . .' (Evid. Code, § 353, italics added.) The rule requiring specificity applies to Miranda-based objections and motions to exclude. [Citation.] The reason for the rule is clear-failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. [Citation.] 'While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.' [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 666-667.)
In his section 1538.5 suppression motion and at the hearing on his motion, Pepper did not raise the Miranda claim he now presents on appeal. Pepper acknowledges this but asserts his Miranda claim is preserved nonetheless because his trial counsel made an objection during the hearing and stated "Miranda" as the basis for the objection. Pepper asserts this was sufficient to alert the prosecutor and court to the issue he now raises on appeal. We disagree.
Defense counsel's Miranda objection during the hearing did not alert the trial court to the need to make findings concerning whether Pepper's statement to Nguyen occurred during a custodial interrogation warranting a Miranda advisement. Although the court briefly addressed Miranda in its ruling, the court's comments reflect it was analyzing whether the police coerced an involuntary statement from Pepper, an issue different than the one Pepper raises here. Had Pepper presented a proper Miranda-based motion, the prosecutor would have questioned the law enforcement officers at the hearing further to elicit evidence concerning the factors that bear on whether Pepper was in custody at the time he talked to Nguyen and the court could have made factual findings and ruled on this issue. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404 [several factors are relevant to the determination of whether an interrogation was custodial].) The issue of whether Pepper was subjected to a custodial interrogation without Miranda warnings was not fully litigated below and therefore was not preserved for appeal. (See People v. Linton (2013) 56 Cal.4th 1146, 1166 [appellate claim forfeited because defendant did not argue in the trial court the interview was custodial under Miranda]; People v. Scott (2011) 52 Cal.4th 452, 482 [claim concerning invocation of Miranda rights forfeited by failure to raise it below]; People v. Holt, supra, 15 Cal.4th at p. 667 [failure to raise Miranda claim in the trial court forfeited appellate claim].)
C. Ineffective Assistance of Counsel Claim
Pepper alternatively argues his trial counsel rendered ineffective assistance by failing to preserve the issue for appeal. A defendant raising a claim of ineffective assistance of trial counsel must satisfy two prongs. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Such a defendant must establish (1) that counsel's representation fell below an objective standard of reasonableness and (2) that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Id. at pp. 687-688, 694-695.) This means that under the Strickland framework, Pepper must not only prove his attorney was deficient for failing to raise the Miranda claim below, but also that there is a reasonable probability he would have obtained a more favorable outcome at trial had counsel mounted such a challenge. (Id. at p. 694; accord, People v. Torres (2018) 25 Cal.App.5th 162, 166, 171-182 [applying Strickland framework to Miranda claim where defense counsel did not seek suppression in the trial court].)
"[C]ertain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding. [Citations.] The record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable. [Citation.] [¶] Moreover, we begin with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.] Accordingly, we have characterized defendant's burden as 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission. [Citation.]" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
On this appellate record, Pepper can establish neither deficient performance nor prejudice. When evaluating whether counsel's performance was deficient, we must presume counsel's actions were reasonable and can be explained as a matter of sound trial strategy. (In re Gay (2020) 8 Cal.5th 1059, 1073.) Here, the record suggests counsel had a tactical reason for not seeking the suppression of Pepper's statement to Nguyen. The video from the parking garage was damaging evidence, placing Pepper at the scene of the thefts. Pepper's statement to Nguyen, however, was mostly exculpatory and nullified this damaging evidence. In his statement to Nguyen, Pepper denied any knowledge of Hernandez's intent to commit the thefts and Pepper denied any involvement in the thefts. The jury obviously believed Pepper's denials as it acquitted him of the theft charges. The only inculpatory part of Pepper's statement was that the wheelchair was in his residence. This evidence was cumulative to Nguyen's testimony that the wheelchair was found in Pepper's room on his bed. For these same reasons, Pepper cannot demonstrate prejudice. Pepper testified at trial that he placed the wheelchair's parts on his bed. Compelling evidence concerning his receipt of the stolen property would have been before the jury even if his statement to Nguyen was excluded based on a Miranda violation. Accordingly, Pepper's claim of ineffective assistance of counsel fails.
IV. Probation Conditions
Pepper raises two contentions concerning conditions of probation imposed by the court at his sentencing hearing. He contends the order for victim restitution must be stricken and the court lacked statutory authority to impose probation supervision fees. Although we have concluded his conviction must be reduced to a misdemeanor and the matter remanded for resentencing, we address these claims to assist the trial court at resentencing.
A. Background
At the sentencing hearing, the court placed Pepper on formal probation and as a condition of probation, ordered Pepper to pay victim restitution, in an amount to be later determined, for the replacement cost of the wheelchair. When imposing additional probation terms, the court stated Pepper "may have to pay the cost of formal probation as directed by [his] probation officer."
B. Restitution Order
Pepper asserts the restitution order should be reversed. We disagree and conclude the court properly ordered Pepper to pay restitution as a condition of probation under section 1203.1.
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Victim "[r]estitution has long been considered a valid condition of probation." (Id. at p. 1121.) "California courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]. There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable ...." (Ibid.) All that is required is that the restitution condition imposed as a condition of probation "be reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality." (Id. at p. 1123.)
The trial court's order that Pepper pay restitution for the replacement cost of the wheelchair as a condition of probation was reasonably related to Pepper's offense and to the goal of deterring future criminality. (People v. Carbajal, supra, 10 Cal.4th at p. 1119.) Section 496, subdivision (a), which criminalizes the receipt of stolen property, "'is directed at those who knowingly deal with thieves and with their stolen goods after the theft has been committed[] . . . in order to provide the thieves with a . . . depository for their loot," thereby facilitating or assisting the thief. (People v. Jaramillo (1976) 16 Cal.3d 752, 758.) Pepper assisted Hernandez in the theft of the wheelchair as he permitted Hernandez to bring the stolen wheelchair into his residence, providing Hernandez a place to deposit the stolen item. Pepper took possession and control of the stolen wheelchair. The restitution order was proper even though Pepper was acquitted of the theft of the wheelchair. (See People v. Lent (1975) 15 Cal.3d 481, 486.)
Additionally, the restitution order deters future criminality. "'Courts have generally found an order requiring the defendant to compensate the victim to be a deterrent to future criminal activity.' [Citation.] 'Restitution "is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused."'" (People v. Rugamas (2001) 93 Cal.App.4th 518, 522.) By ordering Pepper to pay victim restitution, the court impressed upon him that a consequence of his receipt of stolen property will be his liability for the full costs of the victim's losses. (See People v. Lent, supra, 15 Cal.3d at p. 486 ["an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality"].)
C. Probation Supervision Fee
We agree with Pepper that the trial court lacked the authority to impose the costs of probation supervision services, even conditionally, because the statute authorizing these costs was repealed about a month prior to his sentencing hearing. Effective July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) eliminated many fines, fees, and assessments that courts imposed under several statutes. One statute repealed by Assembly Bill No. 1869 was section 1203.1b, which permitted the collection of probation supervision fees. (Stats. 2020, ch. 92, § 47.) Because Pepper's sentencing hearing occurred after section 1203.1b was repealed, the court did not have the authority to impose this fee. (See People v. Clark (2021) 67 Cal.App.5th 248, 259 [after effective date of Assem. Bill No. 1869, defendant may not be charged probation supervision fees].)
DISPOSITION
The judgment is modified to reflect Pepper was convicted of misdemeanor receiving stolen property and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. SANCHEZ, J.
[*]Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.