Opinion
D049999
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. MARVIN STIDUM, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted Marvin Lee Stidum of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460) and attempted robbery (Pen. Code, §§ 664, 211). The court granted Stidums motion for a directed verdict on the attempted robbery charge and sentenced him to prison for seven years.
Stidum appeals, contending the trial court improperly admitted evidence of his impoverished status and erred when it failed to recognize it had discretion to strike portions of a probation report. We conclude the court did not improperly admit evidence of Stidums impoverished status. We further conclude the court had discretion to strike portions of the probation report. Accordingly, we remand with instructions to the trial court to strike portions of the probation report and exercise its discretion with respect to the remaining portions.
FACTS
On July 19, 2006, Stidum approached Florisel Mendoza as she tried to remove a battery from her vehicle. Mendoza accepted Stidums offer to help and Stidum unsuccessfully attempted to remove the battery for approximately 20 minutes. Mendoza said she would have her husband remove the battery when he returned home. As Mendoza began to leave, Stidum asked her for $5 to buy a soda. Mendoza declined to give Stidum the money and walked to the home of her neighbor, Erendira Armenta.
As Armenta spoke to Mendoza, Armentas daughter saw a black male attempting to enter the apartment through a bedroom window. Armenta walked around the house and saw a black male, later identified as Stidum, coming out of her bedroom window. Armenta noticed Stidum was carrying one of her purses, and Mendoza recognized him as the same person who had helped her earlier. Armenta tried to recover the purse and was able to retrieve it after a brief struggle. The police arrested Stidum after they lifted his fingerprints from Mendozas car and Armentas window screen, and after Armenta and Mendoza identified him in a photographic lineup.
DISCUSSION
I
POVERTY EVIDENCE
Stidum contends evidence that he asked Mendoza for $5 was improperly admitted evidence of his poverty. We disagree.
Evidence of a defendants poverty "generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice." (People v. Koontz (2002) 27 Cal.4th 1041, 1076; accord People v. Cornwell (2005) 37 Cal.4th 50, 96; People v. Wilson (1992) 3 Cal.4th 926, 938-939.) We review the courts admission of the evidence for abuse of discretion. (See Cornwell, supra, 37 Cal. 4th at p. 96, fn. 13.)
The determinative question is whether Stidums request for $5 was inadmissible evidence of poverty. Cases that have reversed convictions based on inadmissible poverty evidence are instructive. In People v. Carrillo (2004) 119 Cal.App.4th 94, 98-100, the prosecution elicited testimony from several witnesses that the defendant was unemployed, did not have much money, was a recipient of a state welfare program, and lived with her sister because she could not afford her own apartment. In closing arguments, the prosecution argued Carrillos past financial hardships provided motive to commit robbery. (Id. at p. 100.) The court concluded that "[the defendants] poverty was used to provide convincing harmony to the factual melody of the crime. The result was a composition that convinced the jury, but contravened the law." (Id. at p. 97.) Accordingly, the court reversed the conviction. (Id. at p. 104.)
Similarly, in People v. Wilson (1992) 3 Cal.4th 926, 934, the trial court admitted evidence that "`the defendant was ordered to pay, to a governmental agency in the State of Kansas, the amount of $13,007 . . ." and allowed the prosecution to argue this debt established motive to commit robbery and murder. Our Supreme Court concluded this evidence was not admitted for any purpose besides establishing motive and held it was highly prejudicial. (Id. at p. 939.)
On its face, Stidums request did not definitively establish that he was impoverished or in debt. A jury could have interpreted a request for $5, without more, in various ways. For example, the request may have been Stidums attempt to obtain compensation for the 20 minutes he spent helping Mendoza and was thus a function of his perceived entitlement to compensation for his work rather than his poverty. Ones financial status does not determine whether he would like compensation for work; anyone who works would like compensation. Therefore, Stidums statement did not definitively establish his poverty as would statements about homelessness, welfare status, or indebtedness. (See, e.g., Carrillo, supra, 119 Cal.App.4th at pp. 98-100; Wilson, supra, 3 Cal.4th at p. 939.)
However, while facially innocuous, Stidums request could have been inadmissible had the People used it in a manner that explicitly or implicitly painted a picture of his impoverished status. Here, the People argued:
"The defendant is working on the car. One of the last things he asks Ms. Mendoza-Diaz for is money. We know he wants money. Hes looking for money. He goes in. He comes out with a purse. A logical, reasonable explanation, someone looking for money is going to take a purse. Hes got the purse. [¶] . . . [¶] In this case, asking for money, goes to the side of that building, walks in, seconds later literally hes seen with a purse in his hand. Thats where you can derive his intent from, that he intended to take money or something containing money from that house."
The People further argued:
"And you heard the defendant helped or attempted to help Ms. Mendoza-Diaz with her car. Well, lets think about that. Why is he in that area? Why is he even on that street? And this goes to his intent, once again. Hes looking for money. He sees someone. Looks for an opportunity. Hey, maybe I can help her out and shell give me a couple of bucks. Doesnt go down the way its supposed to. They cant change the battery. He doesnt get the money. He asked for the money. Asked for the $5.00. Didnt get it. He needs money."
The People clearly did not argue Stidums request for money was a function of homelessness, hunger, desperation for money, or any other poverty-based reason. The People simply constructed a logical motive for theft from Stidums general desire for money and, consequently, did not improperly use Stidums request. (Cf. Carrillo, supra, 119 Cal.App.4th at p. 100.) Thus, the court did not abuse its discretion when it admitted evidence of Stidums request for $5.
II
DISCRETION TO STRIKE PORTIONS OF PROBATION REPORT
Stidum contends the court was unaware of its discretion to strike portions of the probation report and should have stricken all references to Stidums gang affiliation and a parole agents statement implicating him in uncharged "hot prowl" burglaries. The People concede the court should have stricken these references.
The trial court has the discretion to correct or strike a probation report, in whole or in part. (People v. Municipal Court (Lopez) (1981) 116 Cal.App.3d 456, 458-459 (Lopez); see People v. Hamilton (1998) 61 Cal.App.4th 149, 156-157.) Further, the court must, if necessary, hold a hearing to review and correct, add, or delete facts from the probation report when "the parties dispute the facts on which the conviction rested . . . ." (Cal. Rules of Court, rule 4.437(e).)
We ordinarily review the trial courts refusal to strike portions of a probation report for abuse of discretion. (Lopez, supra, 116 Cal.App.3d 456, 458-459.) However, we cannot apply this standard here because the court was unaware it had discretion and did not exercise it. Accordingly, we remand the matter with directions to strike from the probation report all references to the Neighborhood Crips gang and the following sentence from page 7: "He reported that the defendant had been the suspect in a number of `hot prowls." We express no opinion as to whether Stidum "fought over the purse" as he attempted to flee and further instruct the trial court to exercise its discretion and evaluate whether "fought over the purse" is a proper characterization of the facts.
DISPOSITION
The case is remanded for the limited purpose of correcting the probation report in accordance with the views expressed in this opinion. The judgment is affirmed in all other respects.
We concur:
McCONNELL, P. J.
BENKE, J.