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People v. Hung

California Court of Appeals, Sixth District
Mar 18, 2008
No. H031603 (Cal. Ct. App. Mar. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LE VAN HUNG, Defendant and Appellant. H031603 California Court of Appeal, Sixth District March 18, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Monterey County Super. Ct. No. SS063288A

ELIA, J.

Following the filing of an amended information in which appellant Le Van Hung was charged with one count of grand theft of personal property over $400 (Pen. Code, § 487, count one), one count of petty theft with a prior (§ 666, count 2), and one count of commercial burglary (§ 459); appellant waived jury trial in exchange for a promise that his maximum sentence would be five years in state prison.

All unspecified statutory references are to the Penal Code.

The amended information alleged that appellant had served four prior prison terms within the meaning of section 667.5, subdivision (b).

At the end of one day of testimony, the court found appellant guilty of all charges and found true four prior prison term allegations. On May 22, 2007, the court sentenced appellant to four years in state prison consisting of the following: The midterm of two years on count one, two concurrent midterms of two years for counts two and three, plus two consecutive one year terms for two of the prior prison terms. The court ordered that appellant pay victim restitution in the amount of $505.46 and a restitution fine of $800 pursuant to the statutory formula in section 1202.4, subdivision (b)(2). In addition, the court imposed, but suspended a parole revocation fine in the same amount as the restitution fine (§1202.45). The court ordered appellant to pay a court security fee of $60. The court awarded appellant 282 days credit for time served.

The court dismissed the remaining prior prison term allegations.

Appellant filed a timely notice of appeal on May 23, 2007.

On appeal, appellant raises three issues. First, appellant contends that he received ineffective assistance of counsel because trial counsel failed to object to the introduction of hearsay testimony, which caused him prejudice thereby requiring reversal of his conviction. Further, counsel was ineffective in failing to object to the court's award of victim restitution based upon the retail value rather than the replacement value of the items stolen. Second, his conviction for petty theft with a prior must be reversed because it is a necessarily included offense of grand theft. Third, the court erred under section 654 in imposing concurrent sentences for the three counts and in imposing a court security fee as to each count.

The People concede that appellant was improperly convicted of both grand theft and petty theft with a prior. Further, the People agree that the concurrent sentences on count two and three must be stayed pursuant to section 654, but disagree that the court security fee must be reduced. We agree that appellant was improperly convicted of both grand theft and petty theft with a prior. Further, we agree that section 654 requires that the concurrent sentence on the commercial burglary must be stayed. However, for reasons that follow we disagree with both appellant and the People as to the amount of the court security fee. In all other respects, we affirm the judgment.

Facts

At about 4:45 a.m. on November 14, 2006, Erica Alvarez Espinosa arrived for work as a cashier at the Moss Landing Valero gas station. Ms. Alvarez started to park her car at the side of the road near the entrance to the gas station when she saw a truck in the station and two men. One of the men was carrying beer from a shed, which was usually locked, in which the station stored beer, water, juice and soda. It appeared to Ms. Alvarez that the locks to the shed were broken and on the ground.

It appears that during trial both parties referred to Ms. Espinosa as Ms. Alvarez. Both parties continue so to do. Accordingly, for the sake of clarity we refer to Ms. Espinosa as Ms. Alvarez.

One of the men, described by Ms. Alvarez in court as a 40-50 year old Asian male, approached her car. Ms. Alvarez shouted that she was going to call the police. The Asian man raised his hand and told Ms. Alvarez to wait five minutes. Ms. Alvarez drove to a nearby residence to telephone the police and the station manager. Ms. Alvarez testified that the amount of beer taken was "about $500 and something." Ms. Alvarez based this conclusion on seeing the gas station manager and an officer looking at the video of the theft, counting the number of cases of beer taken and adding up the cost of the loss based on the beer's retail value. Ms. Alvarez testified that she was generally familiar with the selling price of the beer, which varied depending on whether the specific brand was on sale. However, she was not familiar with the retail price of the beer when it was taken in November.

The gas station was equipped with a video camera, which recorded the theft. A copy of the videotape was played for the court. As described by the court on the record, the tape showed a red pickup truck with a white camper shell parked next to the gas station's storage shed. Two men were present. One of the men cut the locks off the shed with a tool described as a bolt cutter. The other man remained by the truck. The man who cut the locks entered the shed—"a walk-in type container." This man carried something from the container and put it into the truck while the other man walked back and forth in front of the truck. The man who cut the locks walked back and forth between the shed and the truck. The other man went to the back of the truck and appeared to be pushing "containers into the truck." He seemed to be "storing them deeper into the pickup truck, the bed of the truck." Then, the truck left the gas station.

Monterey County Deputy Sheriff Anthony Wood, who was dispatched to the gas station shortly after Ms. Alvarez called the police, took a report of the events from Ms. Alvarez. Ms. Alvarez gave Deputy Wood a description of the thieves. Deputy Wood viewed the gas station's videotape and made a copy of it.

Deputy Wood looked for the red pickup truck the following day, November 15. When Deputy Wood located the truck parked next to Dock F in Moss Landing, there was nobody near the truck, but he could see some empty "broken down cardboard flats for beer" inside. The next day Deputy Wood attempted to contact the owner. He returned to the dock and made contact with appellant who identified himself as Le Van Ha. Subsequently, appellant gave Deputy Wood his real name. Deputy Wood read appellant his Miranda rights and showed him the videotape from the gas station.

Initially, appellant denied that he had participated in any crimes at the gas station. He said that he was on his boat and had loaned the truck keys to a friend named Michael. Appellant said that Michael must have been the person at the gas station. Appellant said that Michael still had the keys to the truck. Eventually, appellant identified Michael from a photograph that Deputy Wood showed him. Subsequently, Michael was identified as Phoung Phan Tran.

After viewing the tape, appellant admitted to being one of the men depicted on the tape. Appellant stated that he was the passenger in the truck, but he did not remember any of the events depicted on the tape because he had consumed a lot of alcohol before going to the gas station. Appellant denied being involved in the theft, but admitted he was present. Appellant said that he did not plan on taking the beer until after Michael cut the locks off the shed. After they took the beer they returned to appellant's boat where he drank more beer and passed out. Appellant denied ever going into the storage shed.

Appellant explained to Deputy Wood that the red pickup truck had been loaned to him and that he kept it at the dock. He allowed several other people to drive the truck. Appellant told Deputy Wood that, initially, he lied because he was on parole.

Deputy Wood searched the truck after arresting appellant. A bolt cutter tool that appeared to be the one used in the burglary was located behind the truck's seat. Deputy Wood found a briefcase containing appellant's personal property.

The boat on which appellant lived at Moss Landing was docked next to the slip where a Department of Fish and Game boat docked. Fish and Game Officer Brian Bailie was assigned to that boat. Frequently, Officer Bailie saw the red pickup truck in the area. He noticed appellant and others driving the truck.

A couple of days after the beer was taken, Ms. Alvarez was taken to view appellant and the truck. Ms. Alvarez identified the truck as the one at the gas station on November 14. She thought that appellant "looked like the person" that took the beer.

Appellant testified in his own defense. He said that he was a passenger on the truck that Michael was driving. Appellant denied taking anything from the storage shed or helping Michael take anything. Appellant said he was drunk at the time of the theft and his memory was a "little fuzzy," but he had no intention of taking the beer from the gas station. Appellant viewed the videotape while he was on the stand and attempted to explain what he was doing in the back of the truck. He said that he was trying to get his wallet and some papers out of the back of the truck because he remembered that he had left them there. Appellant explained, "And I'm thinking if he put it over there and what happened and then my paper and over there and I would be get [sic] in trouble." Appellant denied telling Ms Alvarez to give them five more minutes.

Appellant admitted that he has several prior convictions, including a prior conviction for grand theft in 2004 in Santa Clara County. Appellant's prior convictions were proven by documentary evidence.

Discussion

I. Ineffective Assistance of Counsel

(i) Hearsay Evidence

Appellant argues that he received ineffective assistance of counsel because his trial counsel failed to object to the hearsay testimony of Ms. Alvarez concerning the value of the beer that was taken from the gas station. Specifically, appellant asserts that Ms. Alvarez testified that her manager had taken an inventory after the beer was taken and calculated the loss to the station. Then, the district attorney asked Ms. Alvarez to tell the court the amount of the loss. Ms. Alvarez stated that the loss was " '$500 and something.' " Appellant argues that based on the foregoing testimony, Ms. Alvarez's response was hearsay as she did not calculate the loss. Defense counsel did not object. Further Ms. Alvarez's testimony was the only evidence of the amount of the loss suffered by the gas station. Appellant asserts that without this testimony there was insufficient evidence to establish grand theft. Accordingly, he was prejudiced by counsel's failure to object.

To prevail on a claim of ineffective assistance of counsel, first, appellant must establish that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) On direct appeal, where the record "does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) In other words, appellant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) "[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)

Second, appellant must show prejudice. Specifically, appellant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)

Appellant argues that defense counsel had no reasonable tactical basis for not objecting to Ms. Alvarez's testimony on the value of the beer taken. We disagree. Had defense counsel objected on hearsay grounds, the prosecutor could have shown the amount of the loss by introducing the gas station's business records into evidence (Evid. Code, § 1271) and by calling the gas station manager to testify at the trial. Counsel could have foregone objecting knowing that the amount of loss could easily have been proven by these means.

Furthermore, it is apparent from defense counsel's closing argument that she was more concerned with arguing that the amount of the loss to the gas station was based on the retail value of the beer and because the gas station has a "markup," the value of the beer taken may well have been under $400. Defense counsel had no way of knowing for sure that the calculation of the amount of the loss was based on the retail value other than Ms. Alvarez's testimony that the manager was using the price at which the beer would sell to calculate the loss. However, Ms. Alvarez testified that she was present while the manager was doing the inventory of losses, but she was at the cash register and making coffee, not assisting in the preparation of the list. Defense counsel reasonably could have concluded that Ms. Alvarez's testimony that the gas station manager was using the price at which the beer sold to calculate the loss was nothing more than speculation on Ms. Alvarez's part. Defense counsel may have declined to challenge Ms. Alvarez's testimony because, tactically, it was better for defense counsel to make the argument she made rather than have the prosecutor bring in the gas station manager and risk losing the basis for her argument. In other words, an objection by defense counsel could have done more harm than good.

Accordingly, because we find that defense counsel had a reasonably tactical reason for not challenging Ms. Alvarez's testimony, appellant's ineffective assistance of counsel argument fails.

(ii) Failure to Object to the Court's Award of Victim Restitution Based on Retail Value

During sentencing, the court ordered appellant to pay victim restitution in the amount of $505.46. According to appellant, the court based this figure upon the retail value of the beer. Defense counsel did not object to the amount of victim restitution. Accordingly, appellant argues he received ineffective assistance of counsel because the court must use a rational method to make the victim whole and not exceed the victim's actual loss.

Attached to the probation report was a Monterey County Sheriff's Office Property Identification Form listing the property stolen from the gas station. The form was prepared by Deputy Wood, contains the signature of the "victim" and lists the total value of the items taken as $505.46. There is no indication on this form that the value placed on the items taken was retail value. However, this court will assume for the sake of argument that appellant is correct and the calculation of the loss to the gas station was based on the retail value of the beer.

Appellant's ineffective assistance of counsel claim is based on his assertion that counsel failed to object to the amount of the victim restitution award as being improperly based on the retail value of the beer.

Appellant's ineffective assistance of counsel argument must fail because defense counsel is not required to indulge in idle acts to appear competent. (People v. Zikorus (1983) 150 Cal.App.3d 324, 335.)

First, as noted, defense counsel argued that the calculation of loss to the gas station from the theft of the beer should not be based on the retail value. The court went on to find appellant guilty of grand theft. Accordingly, the court implicitly rejected defense counsel's argument.

More importantly, victim restitution can be based on the retail value of the property stolen. Section 1202.4, subdivision (f)(3) provides that victim restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct . . . ." Further, section 1202.4, subdivision (f)(3)(E) specifically provides for "profits lost by the victim." As the court in People v. Thygesen (1999) 69 Cal.App.4th 988 noted, "Losses to victims will vary from case to case. For example, in a situation involving a victim who has a ring or necklace stolen, there may be no economic loss other than the actual value of the ring or necklace. The same is not true of a victim who is in business. The economic loss may well include the loss of revenue the stolen item would have produced." (Id. at p. 994.)

Under both statutory and case law the restitution award was proper. Accordingly, it would have been futile for defense counsel to object. In sum, counsel did not provide ineffective assistance.

II. Lesser Included Offense

Appellant argues that his conviction for petty theft with a prior must be reversed since petty theft is a lesser and necessarily included offense of grand theft. The People concede that appellant is correct.

Generally, an individual may be convicted "of any number of the offenses charged." (§ 954.) The exception to this rule, however, is that an individual cannot be convicted of an offense and a necessarily included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) " 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' " (Ibid.)

Here appellant was convicted of grand theft and petty theft with a prior conviction. (§§ 484, 487, subd. (a), 666.) CALCRIM No. 1801 states that if the jury finds that the defendant has committed a theft, then the jury must decide if the crime was grand theft or petty theft. "The defendant committed grand theft if (he/she) stole property [or services] worth more than $400. [¶] All other theft is petty theft." Therefore, petty theft is a lesser and necessarily included offense of grand theft. "[T]he prior conviction and incarceration requirement of section 666 is a sentencing factor and not an element of an offense." (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116.) Thus, because "the relevant question is not whether petty theft with a prior is a lesser and necessarily included offense of grand theft," rather, "the question is whether petty theft is a lesser and necessarily included offense of grand theft" (ibid.), which it is, the trial court erred in failing to dismiss the section 666 charge.

The amended information charged the petty theft with a prior count as an included offense of the grand theft since both offenses charged that appellant had taken "personal property" from the "Valero Gas Station," and the record unambiguously demonstrates that appellant committed but a single such act. Accordingly, we will strike appellant's conviction for petty theft with a prior. (§ 666.) (People v. Pearson, supra, 42 Cal.3d at p. 355 [if the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed].)

As to count one, the amended information charged appellant with taking personal property and money. There was absolutely no evidence presented that appellant took money from the gas station.

III. Section 654

(i) Concurrent Sentences

As noted, the trial court found appellant guilty of three theft related offenses. At sentencing the court imposed the mid-term of two years on count one (grand theft) and two concurrent two-year terms on counts two (petty theft with a prior) and three (commercial burglary). In addition, the court imposed a court security fee in the amount of $60 -- $20 for each conviction. Appellant argues that the court erred in imposing concurrent sentences for counts two and three and the court security fee for multiple convictions, as both violate the prohibition against multiple punishments for the same act under section 654.

Since we must strike appellant's conviction for petty theft with a prior we are concerned only with the concurrent sentence on count three (commercial burglary).

"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) The defendant's intent and objective determines whether the course of conduct is indivisible. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Accordingly, " 'If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) "The determination of a defendant's intent and objective are factual matters for the trial court to determine. [Citation.] We must affirm if substantial evidence supports a trial court's express or implied determination that punishment for crimes occurring during a course of conduct does not involve dual use of facts prohibited by section 654. [Citation.]" (Ibid.)

The People concede that in this case appellant had the same intent and objective in committing grand theft and commercial burglary. We agree. We find no evidence that would support the trial court's implied determination that appellant's intent and objective was different for each of the two crimes of which he was convicted.

On the record before us, it is apparent that appellant's offenses of grand theft and commercial burglary were the means of accomplishing the single intent and objective of stealing beer from the Valero gas station on November 14, 2006. Under these circumstances, we conclude that the trial court erred in not staying the term imposed on count three. "When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent." (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8.) "It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously." (People v. Miller, supra, 18 Cal.3d at p. 887.) Accordingly, we will stay execution of sentence on count three, a violation of section 459.

(ii) Court Security Fee

Penal Code section 1465.8 provides for the imposition of a $20 court security fee "on every conviction for a criminal offense." Appellant asserts that section 654's prohibition against multiple punishments for the same act or omission prevents the trial court from imposing multiple fees. People v. Alford (2007) 42 Cal.4th 749, provides the answer to appellant's argument.

As noted section 654 prevents the court from imposing "multiple punishment" for a single act or omission. (§ 654, subd. (a).) In People v. Alford, supra, 42 Cal.4th at page 757, the California Supreme Court recently held that the $20 court security fee does not constitute punishment. Accordingly, section 654 is not implicated. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371, review denied November 14, 2007.) However, because we are required to strike appellant's conviction on count two he has only two remaining convictions. Thus, we reduce the court security fee to $40. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [section 1465.8 unambiguously requires a fee to be imposed for each of defendant's convictions. Under this statute, a court security fee attaches to every conviction for a criminal offense].)

Disposition

The judgment is modified to strike the conviction for count two, a violation of section 666; the sentence on count three, commercial burglary, a violation of section 459 is stayed under section 654; and the court security fee is reduced to $40. The trial court shall correct the abstract of judgment to reflect these modifications and forward a copy of the amended abstract to the Department of Corrections. As so modified, the judgment is affirmed.

WE CONCUR: RUSHING, P. J., PREMO, J.


Summaries of

People v. Hung

California Court of Appeals, Sixth District
Mar 18, 2008
No. H031603 (Cal. Ct. App. Mar. 18, 2008)
Case details for

People v. Hung

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LE VAN HUNG, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Mar 18, 2008

Citations

No. H031603 (Cal. Ct. App. Mar. 18, 2008)