Opinion
E052399
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. RYAN PATRICK FLAHERTY, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF10001926)
OPINION
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Ryan Patrick Flaherty was charged by amended information with the unlawful driving or taking of a vehicle, with a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, count 1), and receiving, withholding, or concealing a stolen vehicle from its owner, with a prior vehicle theft conviction (Pen. Code, §§ 666.5, subd. (a), 496d, subd. (a), count 2). It was also alleged that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)), and had one prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
Prior to trial, defendant filed a motion to suppress evidence of his prior vehicle theft convictions under Evidence Code section 352. The trial court ruled that the prosecution could allow evidence of three prior convictions under Evidence Code section 1101, subdivision (b), to show knowledge and intent. All other prior convictions were excluded.
Defense counsel later objected to the prosecutor's use of trial court records to prove the three prior convictions, arguing that the records themselves did not show anything about defendant's knowledge or intent. The trial court ruled that certified records of the convictions would be admissible for the stated purposes under Evidence Code section 452.5.
At trial, for purposes of the charges in counts 1 and 2, defendant admitted suffering prior convictions for violating Vehicle Code section 10851, subdivision (a), in 2003 and 2005, and Penal Code section 496(d), subdivision (a), in 2008. A jury subsequently found defendant guilty as charged. Defendant waived his right to a jury trial on the prior conviction allegations, and the trial court held a bifurcated hearing.
After reviewing the evidence, the trial court found that defendant was convicted of the prison priors alleged in the amended information. Defendant filed a motion for new trial, in propria persona. The trial court denied the motion, concluding that there was substantial evidence to support the jury's verdict. Defendant then stated that he wanted defense counsel to represent him for the sentencing hearing.
Defense counsel filed a Romero motion, which the trial court denied. The trial court sentenced defendant to the midterm of three years on count 1, doubled pursuant to the strike conviction, plus one year on each of the four prison priors, for a total of 10 years in state prison. The trial court stayed the sentence on count 2 under Penal Code section 654. It also awarded defendant 366 custody credits (244 actual and 122 conduct credits). The trial court imposed a $3,200 restitution fine pursuant to Penal Code section 1202.4, and a $414.45 booking fee, along with other fees.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
Defendant filed a timely notice of appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
The victim owned a white 1998 Ford Expedition (the vehicle). On March 31, 2010, the vehicle was parked in his driveway. He left home around 11:00 a.m. When he returned around 2:00 p.m., the vehicle was gone. No one in his family had the vehicle, so he called 911 to report it stolen. An officer responded and took the stolen vehicle report.
Later that night, a woman was driving home when she noticed a vehicle stopped at a stop sign near her home. She parked her vehicle at her home and looked toward the vehicle, which was still at the stop sign. She noticed that the male driver was slumped forward toward the steering wheel. She called 911 around 11:00 p.m. She saw an emergency vehicle arrive within five to 10 minutes after her call.
Paramedics responded to the call. When they arrived, the vehicle was running, and they saw a person slumped over in the driver's seat. They pulled their paramedic truck in front of the vehicle and sounded an air horn to see if the driver would respond. The driver did not respond, so one of the paramedics approached the vehicle on foot, shined his flashlight into the vehicle, and woke the driver up. The driver was identified as defendant. The paramedic told defendant to turn off the ignition, get out of the vehicle, and lie down on the street. Defendant complied. The paramedic observed a few items on the passenger floorboard, including a drill gun, some screwdrivers, gloves, and a crescent wrench.
A patrol officer responded to the call. Upon arrival, he saw defendant with the two paramedics standing next to the vehicle. The officer checked the ignition and observed that there was no damage. He did not see any damage to the windows or locks either. One of the paramedics gave the officer the key that was found in the vehicle's ignition. The key was not shaved, and it was not on a key ring, but was an individual key. The officer ran the license plate, and it came up as a stolen vehicle, with the victim as the reporting party. The victim was called and told that his vehicle had been recovered. The victim responded to the location and identified his vehicle. The victim was asked if he had all of his keys, and he said he did. The victim did not recognize the key that the officer pulled from the ignition of the stolen vehicle. The victim had his key on his key ring. The victim's key had the word "Ford" on it. The key found in the ignition of the stolen vehicle did not have any writing on it. The officer believed the key found in the ignition was a "master key." He did not test the key in the door locks or the trunk, and he did not put in the police report that he had recovered a master key. At trial, he testified that a master key was a key that could be used to start several vehicles of the same model.
At the time the vehicle was stolen, there were stickers on the rear window, and it was very dirty. Upon recovery of the vehicle, the victim noticed that it was very clean, and the stickers that were on the rear window had been removed. He drove the vehicle home that night, and found a drill that did not belong to him underneath the passenger seat. Furthermore, the items that were in the vehicle before it was stolen were gone, including a motorcycle tie-down, a metal ramp for his trailer, some school books, and some glasses. At trial, the victim testified that he did not know defendant, and he did not give defendant or anyone else permission to drive the vehicle that day.
Defense Evidence
Defendant's grandmother testified at trial that defendant and his friend came to visit her on March 31, 2010, around 3:00 p.m. She believed defendant was driving "a small car." Defendant's friend also testified at trial that she went with defendant once to visit his grandmother. She said it was "[p]robably" in March 2010. Defendant's friend also testified that defendant was driving a white pickup truck.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and some potentially arguable issues, including: (1) whether the trial court erred in admitting evidence of defendant's three prior convictions under Evidence Code section 1101; (2) whether admitting evidence of those prior convictions was unduly prejudicial under Evidence Code section 352; (3) whether admitting court documents to prove the three prior convictions violated defendant's constitutional right of confrontation; (4) whether there was sufficient evidence that defendant knew the vehicle was stolen and/or that he intended to deprive the owner of possession of the vehicle; (5) whether the trial court erred in denying counsel's attempt to elicit statements the defendant made regarding the vehicle; (6) whether defendant was impermissibly convicted of both the unlawful taking of the vehicle and receiving the same vehicle; (7) whether the prosecutor committed misconduct by impermissibly commenting on defendant's right to remain silent; (8) whether the trial court erred in denying defendant's motion for new trial;
(9) whether the trial court abused its discretion in denying the Romero motion;
(10) whether the trial court improperly used defendant's three prior convictions to both elevate the present offenses to violations of Penal Code section 666.5 and to impose three prior prison enhancements under Penal Code section 667.5, subdivision (b); (11) whether the trial court improperly imposed a booking fee without making a finding that defendant had the ability to pay; and (12) whether the trial court impermissibly deferred to the probation officer in setting a restitution fine in excess of the customary $200 for each year of confinement. Counsel has also requested that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. He has listed numerous arguments on appeal. First, he argues that the prosecutor committed misconduct during closing arguments. He claims she improperly commented on his right to remain silent when she argued that only the defense could present evidence as to his whereabouts on the day the vehicle was stolen. Defendant's contention lacks merit. He cites Griffin v. California (1965) 380 U.S. 609, in support of his argument. Under Griffin, "[t]he Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant's decision not to testify on his own behalf. [Citations.]" (People v. Taylor (2010) 48 Cal.4th 574, 632-633.) However, "[t]he Fifth Amendment does not prohibit the prosecution from commenting on the state of the evidence presented at trial, or on the defense's failure to introduce material evidence or to call witnesses other than the defendant. [Citation.]" (Id. at p. 633.) Here, the prosecutor's statement was a fair comment on the state of the evidence, rather than a comment on defendant's decision not to testify.
Defendant additionally argues that his counsel rendered ineffective assistance when she failed to state the grounds upon objecting to the prosecutor's argument. In light of our conclusion above, we reject this argument since defendant cannot establish that his counsel's performance was deficient under an objective standard of professional competency, or that there is a reasonable probability that, but for counsel's alleged error, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.)
Defendant next contends the trial court's admission of his three prior convictions under Evidence Code section 1101, subdivision (b), was unduly prejudicial under Evidence Code section 352, and that the admission violated his right a fair trial. He claims that "[i]t is well settled law that revealing the name and nature of a [d]efendant[']s prior conviction would unfairly tax the jury's capacity to hold the People to its burden of proof beyond a reasonable doubt on the current charges." We disagree. Evidence of other crimes committed by a defendant is admissible under Evidence Code section 1101 when relevant to prove some fact, such as motive, opportunity, intent, or knowledge, other than the defendant's propensity or disposition to commit such acts. (Evid. Code, § 1101, subd. (b).) "Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1195.) On appeal, we review the trial court's ruling for abuse of discretion. (Ibid.) Here, the evidence of defendant's prior vehicle theft convictions fell within the purview of Evidence Code section 1101, subdivision (b), as it tended to prove that defendant knew he was taking or driving a stolen vehicle with the intent to deprive the owner of possession of it. Based on the record in this case, we cannot say the trial court abused its discretion in admitting relevant evidence that tended to prove a material fact. (Evid. Code, § 210.)
Defendant next argues that the trial court erred in allowing the officer to testify that the key found in the ignition of the vehicle was a master key, since the prosecution did not inform him of the "'Master key' opinion" until the Evidence Code section 402 hearing, at the beginning of the trial. Defendant claims that the admission of this testimony violated his "right to due process of being given 'notice of the specific charge and a chance to be heard in trial of the issues raised by that charge.'" This argument is meritless since he was not "charged" with having a master key. Defendant further claims that the trial court should have excluded the officer's testimony regarding the master key, "as a sanction for late discovery . . . and/or for failure to preserve the key as evidence." Defendant has failed to cite any relevant legal authority to support these claims. "'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Defendant further contends that he was improperly convicted of both the unlawful taking of a vehicle and receiving the same stolen vehicle. He asserts that the trial court transcripts do not reveal whether the jury convicted him of taking the vehicle or driving it. He notes that the information alleged both, and the trial court instructed the jury on both. Defendant is correct that a defendant may not be convicted of both taking and receiving the same stolen property. (People v. Garza (2005) 35 Cal.4th 866, 876.) Nevertheless, defendant here was properly convicted of both offenses. The evidence showed only that defendant was the driver of the stolen vehicle, and the prosecutor argued that defendant drove the stolen vehicle. The prosecutor made no argument and presented no evidence to show that defendant was the actual thief. A person who violates Vehicle Code section 10851 by driving a stolen vehicle with intent to deprive the owner of possession may be convicted both of the Vehicle Code offense and of receiving stolen property. (Ibid.) Thus, defendant properly stood convicted of both the Vehicle Code section 10851 offense and the Penal Code section 496d offense.
Defendant additionally argues that the trial court improperly imposed a booking fee of $414.45 without providing a hearing or making a finding that he had the ability to pay. Defendant waived this claim for failure to raise it below. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371.) In any event, defendant's claim is meritless. The trial court here did not specify under which statute the booking fee was imposed; however, the abstract of judgment indicates it was imposed under Government Code section 29550. Government Code section 29550, subdivision (c), provides, "Any county whose officer or agent arrests a person is entitled to recover from the arrested person a criminal justice administration fee for administrative costs it incurs in conjunction with the arrest if the person is convicted of any criminal offense related to the arrest . . . . The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, including applicable overhead costs incurred in booking or otherwise processing arrested persons." Subdivision (d)(1) provides, "A judgment of conviction may impose an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution may be issued on the order in the same manner as a judgment in a civil action, but shall not be enforceable by contempt." In view of the plain language of subdivisions (c) and (d)(1), the trial court did not have to determine defendant's ability to pay prior to imposing the fee.
Finally, defendant contends that the trial court improperly imposed a $3,200 restitution fine, pursuant to Penal Code section 1202.4, without making a finding on his ability to pay. He also asserts that the trial court "simply deferred to the recommendation of the probation report" in setting the amount. We find no error. First, defendant forfeited these claims by failing to object at his sentencing hearing. (People v. Gamache (2010) 48 Cal.4th 347, 409.) Second, defendant's claims fail on the merits. Under Penal Code section 1202.4, subdivision (d), a defendant's inability to pay is one factor the trial court is to consider in setting a restitution fine in excess of the statutory minimum ($200). However, subdivision (d) also says, "Express findings by the court as to the factors bearing on the amount of the fine shall not be required." In other words, the trial court was not required to make a finding on defendant's ability to pay. Moreover, Penal Code section 1202.4, subdivision (d), provides that a "defendant shall bear the burden of demonstrating his or her inability to pay." Defendant points to no evidence in the record supporting his inability to pay. Furthermore, on this record, the trial court did not abuse its discretion in setting the restitution fine amount. The statute provides a recommended formula for calculating the fine. "In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Pen. Code, § 1202.4, subd. (b)(2).) Here, defendant was sentenced to 10 years in prison, and was convicted of two felony counts. Under the formula set forth in the statute, the trial court could have thus set the fine at $4,000. The $3,200 fine was well within its discretion.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P.J.
We concur:
RICHLI
J.
CODRINGTON
J.