Opinion
C097201
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL ALLEN DURAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. MAN-CR-FE-2022-0005242
BOULWARE EURIE, J.
A jury found defendant Nathaniel Allen Duran guilty of attempted grand theft after he tried to take a cart of power tools out of a Home Depot without paying for them. After the attempt was foiled, a store employee scanned each item in order to generate a receipt of the items in the cart and asset protection used the receipt to populate an incident report and account for the value of the tools defendant attempted to take. Both the receipt and the report were used as evidence at trial. On appeal, defendant argues both items were inadmissible hearsay and defendant received ineffective assistance of counsel because defense counsel failed to object on those grounds. Defendant also claims the trial court incorrectly imposed a fine under Penal Code section 1202.5. We will modify the judgment to strike the fine, but otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The information charged defendant with one count of grand theft. (§ 487, subd. (a).) At trial, as relevant to the issues on appeal, the prosecution called Eddie Daube, an asset protection specialist at Home Depot, to testify. Daube said defendant entered the store wearing a black ski mask, which immediately drew his attention. Defendant went to the power tool section and began filling his cart with power tools. Daube noticed the items he selected were high value, so he called the local police department to notify them of a potential shoplifter.
Daube stopped defendant on the sidewalk outside the store. Defendant said he worked for a different Home Depot and was transferring the merchandise. A police officer arrived and detained defendant. After defendant was arrested, Daube helped an associate ring up the merchandise that was on the cart and produced a receipt, which the prosecution marked as People's exhibit 5. Daube then used the entries on the receipt to create a list in his incident report, which the prosecution marked as People's exhibit 6.
The prosecution moved to admit the exhibits into evidence, defense counsel asked to approach, and the parties had an off-the-record discussion with the court. On the record, the court confirmed there was an objection to exhibits 5 and 6 by the defense and the court reserved ruling on those exhibits.
Daube confirmed he was present when the items were rung up on the cash register. He remembered the value of the items in defendant's cart was around $2,000 but did not remember the exact number. Daube then refreshed his recollection and said the total value of the items was $2,041.37.
The prosecution confirmed exhibit 5 was created when Daube and a store employee scanned the items in defendant's cart, that Daube saw the receipt being produced, the exhibit was a "true and accurate depiction of the receipt that was produced that day," and then attempted to move exhibit 5 into evidence again. The court stated defendant could cross-examine on the exhibit first.
After cross-examination, the prosecution asked to approach the bench and the parties had another discussion off the record. On the record, the court asked whether there was still an objection to exhibits 5 and 6, and defense counsel confirmed there was. The court then admitted the exhibits over the defense's objection, which was unspecified on the record.
After publishing the exhibit, the prosecution confirmed Daube counted the total items on his own, not through the cash register, and entered those items into his report. Daube explained he assisted in ringing up some of the merchandise but did not scan all of the merchandise himself. Daube was at the register when the final list of items was scanned and could see the final list on the computer terminal.
The prosecution asked Daube whether the total on the receipt was an accurate amount and defense counsel objected based on lack of foundation and personal knowledge. The parties approached the bench and had another unreported discussion before the court sustained the objection. Daube stated he saw defendant "push a cart full of over $2,000 worth of tools past the point of sale at the Home Depot."
At the conclusion of evidence, defense counsel raised "the receipt issue," saying there was a lack of foundation for the receipt because it "wasn't rung up by Mr. Daube, . . . it really needs to be the other employee who rung it up, so there's a lack of foundation as to that, so I would ask the Court to exclude, I think, People's 5 and 6." Defense counsel concluded, "There's no foundation for that receipt. It was generated by another person, and these are the laws of evidence, and I think that they should be adhered to. There's no foundation for that receipt, so People's Number 5 and People's Number 6 should be not admitted due to lack of foundation." The court overruled the objection, explaining that the core of the dispute, which had been the topic of the earlier unreported discussions, appeared to be what role Daube played in creating the receipts. The court found a sufficient basis to admit exhibits 5 and 6.
The jury found defendant guilty of the lesser included offense of attempted grand theft. (§§ 664, 487, subd. (a).) The trial court denied probation, sentenced defendant to one year in county jail, one half of the midterm, pursuant to section 1170, subdivision (h), and imposed various fines and fees, including a $39 law enforcement fine under section 1202.5. Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant divides hearsay and ineffective assistance of counsel into two separate issues. Because the ineffective assistance of counsel issue arises out of the hearsay issue, we will discuss them together.
Defendant argues the receipt and report, exhibits 5 and 6, were inadmissible hearsay and the admission of these items violated his confrontation right under the federal Constitution. The People contend defendant failed to raise this claim at trial and thus forfeited the argument on appeal. We agree with the People.
Under Evidence Code section 353, "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." Thus, a" 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." (People v. Partida (2005) 37 Cal.4th 428, 434.) Forfeiture extends to asserted violations of the "federal rights to due process and confrontation." (People v. Burgener (2003) 29 Cal.4th 833, 869.)
Defendant did not raise any hearsay objections in his motions in limine, during Daube's testimony, or when defense counsel made a record at the close of evidence. Nor did he invoke his federal confrontation rights. To the extent he objected to exhibits 5 and 6, he objected on foundational grounds, asserting Daube was not involved in creating exhibit 5 and thus did not have personal knowledge. These objections did not "fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons [defendant] believe[d] the evidence should be excluded" so the prosecution could remedy the error and the court could "make a fully informed ruling." (People v. Partida, supra, 37 Cal.4th at p. 435; People v. Burroughs (2016) 6 Cal.App.5th 378, 408 [hearsay objection forfeited where the defendant objected exclusively on foundational grounds].) Defendant thus forfeited this issue.
Anticipating this conclusion, defendant argues he received ineffective assistance of counsel because defense counsel failed to object on specific hearsay grounds. He attempts to bolster the argument by arguing exhibits 5 and 6 were the only way to establish the value of the merchandise, and the prosecution would not have been able to meet the threshold for grand theft without them.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To show prejudice, a "defendant must also show' "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." '" (People v. Torres (1995) 33 Cal.App.4th 37, 49.) A reviewing court may reject a claim of ineffective assistance of counsel without addressing both components if a defendant makes an insufficient showing as to either prong. (Strickland, at p. 697.)
Theft is divided into two categories: grand theft and petty theft. (§ 486.) Grand theft involves taking personal property with a "reasonable and fair market value" exceeding $950. (§§ 484, 487, subd. (a).)" '[F]air market value' means the highest price obtainable in the market place rather than the lowest price or the average price." (People v. Pena (1977) 68 Cal.App.3d 100, 104.)
Defendant has not shown that trial counsel's purported failure to object to the admission of exhibits 5 and 6 was deficient or that the failure to make such an objection was prejudicial to him because the prosecution also established the value of the stolen items through nonhearsay testimony. After the prosecution first failed to admit the exhibits into evidence, the prosecutor asked Daube, "Do you remember off the top of your head, how much it was that he had in the cart?" Daube replied the amount was "[a]pproximately $2,000, somewhere around there." The prosecutor pressed for a more specific number, but Daube could not remember, so he refreshed his recollection by reviewing his report. He then testified the total value of the merchandise was $2,041.37. Both of these statements were nonhearsay testimony and established the fair market value of the stolen items above $950. (Evid. Code, § 813, subd. (a)(3).) It was also permissible for Daube to refresh his recollection using the exhibits, even if they were inadmissible hearsay. (People v. Lee (1990) 219 Cal.App.3d 829, 840.) Thus, had defense counsel objected and successfully excluded the exhibits from evidence, the value of the items would still have been established and the outcome would have been the same. We conclude there was no ineffective assistance of counsel.
II
Fines and Fees
Defendant argues the trial court incorrectly imposed a $39 fine under section 1202.5 because that section only applies to convictions of specific enumerated felonies but not to attempt convictions for those felonies. The People concede this argument, and we agree with the parties.
Under section 1202.5, the court "shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed" for a conviction "of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or Section 488, or 594." "In numerous settings, penal statutes have not referred to an attempt to commit a crime. Under these circumstances, appellate courts have consistently held that the penal statute therefore does not apply to an attempted crime." (People v. Jefferson (2016) 248 Cal.App.4th 660, 663.) Accordingly, the statute does not apply to defendant's attempted grand theft conviction, and we will strike the fine.
DISPOSITION
The judgment is modified to strike the $39 fine under section 1202.5. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.
We concur: MAURO, Acting P. J., DUARTE, J.