Opinion
A156018
05-27-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. MASON ALLEN JOHN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR335057, FCR327174)
Mason Allen John (defendant) appeals from a judgment entered after a jury found him guilty of receiving a stolen vehicle with a prior (Pen. Code, §§ 496, subd. (a), 666.5) and evading an officer with willful and wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)). He contends the trial court erred by admitting evidence of a prior auto theft and by imposing fines, fees, and assessments without determining his ability to pay. We affirm.
Defendant raised a third contention in his opening brief regarding custody credits but withdrew that contention after the trial court corrected the error.
FACTUAL AND PROCEDURAL BACKGROUND
In felony case FCR335057, a jury found defendant guilty of receiving a stolen vehicle with a prior (Pen. Code, §§ 496, subd. (a), 666.5) and evading an officer with willful and wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)). At the time of the offense, defendant was on four grants of probation—in one felony case, FCR327174, and three misdemeanor cases. In a bifurcated trial, the trial court found true the allegation that defendant had suffered a prior conviction in case FCR327174 for unlawfully taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)). The court revoked defendant's probation in the three misdemeanor cases and imposed consecutive jail sentences for each. The court sentenced defendant to an aggregate term of three years and eight months and imposed various fines, fees, and assessments for the two felonies.
We note the information alleges in count 2 that defendant committed the offense of receiving stolen property with a prior, but that it lists only Penal Code section 666.5—an enhancement statute for the prior that is not a substantive offense (People v. Young (1991) 234 Cal.App.3d 111, 114)—when it should have also listed Penal Code section 496 subdivision (a), which is the substantive offense of receipt of stolen property. The jury, however, was instructed with, and found defendant committed all of the elements of Penal Code section 496 subdivision (a), and defendant does not argue the omission in the information was prejudicial. (See People v. Thomas (1987) 43 Cal.3d 818, 828 [defects in the information, including charging the defendant under the wrong statute, are "of no consequence" where the defendant is not prejudiced by the error].)
At trial, the victim M.W. testified that a location-tracking app on his phone alerted him that his Ford truck (the Ford) had been moved from his driveway. M.W. thought he might have left the truck key inside the Ford. M.W. went to check his driveway right away and saw the Ford was gone; he called the police. When the police arrived, M.W. took another car and followed the Ford using his phone app while his wife stayed with police and showed them the Ford's route on the app, which she also had on her phone. M.W. followed the Ford until it stopped at a gas station. When M.W. stopped his car about 20 feet away from the Ford, there was no one inside the Ford, but shortly thereafter, a man—whom M.W. identified at trial with "95 percent" certainty as defendant—walked up to and got into the Ford. M.W. stopped his pursuit after the Ford left the gas station because he saw four police cars following the Ford.
Solano County Deputy Sheriff James Currie went to the gas station after receiving a dispatch regarding the stolen Ford. Currie followed the Ford as it left the gas station and activated his lights and sirens indicating to the driver to pull over. The Ford instead sped up to more than 55 miles per hour and Currie gave chase at high speed. Several other deputies assisted in the chase, and at some points the Ford was going at speeds of over 100 miles per hour. Currie lost sight of the Ford three times during the chase, which lasted over 30 minutes. The chase ended when Currie found the Ford abandoned on an irrigation road that was blocked by a steel gate.
Another deputy participating in the pursuit, Charles Dehoney, was the first to make contact with defendant. Dehoney detained defendant until Currie arrived and told Dehoney that defendant was the person he saw driving the Ford from the gas station. At trial, Currie identified defendant as the man he saw in the Ford at the gas station and later arrested.
Dixon Police Officer John Gamoras testified that about 13 months before the current offenses, a Mercedes Benz car (the Mercedes) was stolen. Officers found the Mercedes abandoned in a place defendant frequented, and Gamoras' investigation and review of a surveillance video led him to identify defendant as a suspect. Gamoras interviewed defendant, who waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and admitted he stole the Mercedes. Defendant told Garmoras that he was walking down the street when he saw a truck and the Mercedes. He found the key to the Mercedes while rummaging through the truck and used it to get into the Mercedes and drive away.
DISCUSSION
I. Evidence of Prior Auto Theft
Defendant contends the trial court prejudicially erred when it allowed the prosecution to present evidence of his prior auto theft. Before trial, the prosecutor moved to admit evidence of defendant's prior auto theft conviction in case FCR327174 to show intent and knowledge under Evidence Code section 1101 subdivision (b). Defendant moved to exclude any evidence of prior criminal or bad acts. At a hearing on the motions, defense counsel argued the court should not admit evidence of the prior because only identity—not knowledge—was being challenged. The court stated the evidence was relevant because the prosecution had the burden to prove knowledge as an element of the offense of receiving stolen property and the defense could "stand up and argue that [the prosecution] didn't prove knowledge" at the close of the prosecution's case. "So I'm just not convinced by that argument that just because you're telling me now that you're not going to challenge knowledge on the part of the person who was driving the car that the People aren't allowed to prove knowledge. [¶] So that's the court's ruling. I just don't see it unduly prejudicial under Evidence Code section 352 and it is admissible under [section] 1101 (b)." At trial, Gamoras testified regarding the prior auto theft as stated above.
All further, undesignated statutory references are to the Evidence Code.
Section 1101 subdivision (a) prohibits admission of character evidence, including evidence of prior conduct to prove a defendant's conduct on a specific occasion. Subdivision (b), however, states: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." "Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant." (People v. Daniels (1991) 52 Cal.3d 815, 856.)
Moreover, the trial court has broad discretion under section 352 to assess whether the probative value of evidence is outweighed by the risk of undue prejudice, consumption of time or confusion. (People v. Lewis (2001) 26 Cal.4th 334, 374.) " 'Prejudice' in the context of Evidence Code section 352 is not synonymous with 'damaging': it refers to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome." (People v. Booker (2011) 51 Cal.4th 141, 188.) Evidence is therefore not "unduly prejudicial" under the Evidence Code merely because it strongly implicates a defendant and casts him in a bad light. (People v. Robinson (2005) 37 Cal.4th 592, 632.)
We review the trial court's admission of evidence under section 1101, including its analysis under section 352, for an abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) The court's exercise of discretion " ' "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citation.]' [Citations.] It is appellant's burden on appeal to establish an abuse of discretion and prejudice." (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.)
Here, defendant was charged with receiving a stolen vehicle, which required the prosecution to prove that defendant received a vehicle that had been stolen and that he knew when he received the vehicle that it had been stolen. (Pen. Code, § 496; CALCRIM No. 1750.) Although defendant had not been charged with stealing the Ford, the prosecution's theory was that defendant knew the Ford was stolen because he was the one who had stolen it. (People v. Allen (1999) 21 Cal.4th 846, 857 [Penal Code section 496 "authorizes a conviction for receiving stolen property even though the defendant also stole the property, provided he has not actually been convicted of the theft"].) Thus, evidence that defendant had recently stolen the Mercedes under similar circumstances—coming across the keys to a vehicle and using the keys to get into the vehicle and drive away—was relevant to prove his intent to steal the Ford and to support the conclusion that he knew the Ford was stolen. (§ 210 [" '[r]elevant evidence' " is "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].) It has long been recognized that " ' " ' "if a person acts similarly in similar situations, he probably harbors the same intent in each instance" [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.' " [Citation.]' " (People v. Thomas (2011) 52 Cal.4th 336, 355-356.) Here, defendant's intent in stealing the Mercedes and the Ford was relevant and probative of his knowledge that the Ford was stolen—an element of the offense the prosecution was required to prove. The knowledge he gained from the prior auto theft could have also explained why he fled when he saw officers at the gas station. The trial court did not abuse its discretion in admitting the evidence under section 1101.
We further conclude the trial court did not abuse its discretion in its analysis under section 352. Evidence of the prior auto theft was not more inflammatory than the evidence defendant stole/received the stolen Ford in this case. (People v. Doolin (2009) 45 Cal.4th 390, 438-439 [" ' " 'The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues' " ' "].) The evidence did not involve an undue consumption of time at trial and was not cumulative. In addition, the trial court minimized the potential for prejudice when it properly instructed the jury to consider evidence of the prior incident for the limited purpose of showing defendant knew the Ford was stolen in the charged offense. (People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed to follow the instructions].) In sum, any prejudice arising from admitting the prior auto theft evidence did not rise to the level necessary for exclusion under section 352.
Moreover, even assuming the trial court abused its discretion, we would conclude any error was harmless because it is not reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Partida (2005) 37 Cal.4th 428, 439 [absent fundamental unfairness, error in admitting evidence is subject to the Watson test].) The evidence was strong that defendant received a stolen vehicle. M.W. went to his driveway right after his app alerted him that his Ford had been taken, and he followed the Ford to the gas station using his phone app. Although M.W. did not see defendant leave the Ford (he saw defendant enter it and drive away from the gas station), the logical inference was that defendant had only momentarily left the Ford and then returned, i.e., he was the same person who took the Ford from M.W.'s driveway and drove it to the gas station. Moreover, defendant did not comply with law enforcement's instruction to stop and pull over, and instead fled the scene at a high speed and led officers on a high-speed chase for over 30 minutes. He continued to flee after leaving the Ford on a blocked irrigation road. (People v. Mulqueen (1970) 9 Cal.App.3d 532, 543 [flight supports an inference of consciousness of guilt].) Given the strength of the evidence pointing to defendant's guilt and the trial court's limiting instructions to the jury, we conclude it is not reasonably probable the result would have been more favorable to defendant had the trial court not admitted the evidence.
II. Ability to Pay
In case FCR335057, the trial court imposed a $900 restitution fine (Pen. Code, § 1202.4, subd. (b)(2)), $900 suspended restitution fine (Pen. Code, § 1202.45), $40 court security fee (Pen. Code, § 1465.8) per count, and $30 criminal conviction assessment fee (Gov. Code, § 70373) per count. In the probation felony case FCR327174, the court reimposed the previous $300 restitution fine (Pen. Code, § 1202.4, subd. (b)(2)), $300 suspended restitution fine (Pen. Code, § 1202.45), $40 court security fee (Pen. Code, § 1465.8), and $30 criminal conviction assessment fee (Gov. Code, § 70373), and ordered that the $300 probation revocation fee was now payable (Pen. Code, § 1202.44).
Defendant contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court violated his federal constitutional rights by imposing the above fines and fees without first determining his ability to pay. We reject his contention. In Dueñas, the defendant, "an indigent and homeless mother of young children" who suffers from cerebral palsy, is unable to work, receives public assistance, has limited education, and has been unable to pay prior citations and fees, was convicted of driving with a suspended license. (Id. at pp. 1160-1163.) At sentencing, she argued she did not have the ability to pay fees and fines, produced evidence of her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The trial court struck some fees but imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. (Id. at pp. 1162, 1163.)
The Court of Appeal concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [section 1465.8] and Government Code section 70373" and that while section 1202.4 "bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Id. at p. 1164.)
Here, unlike in Dueñas, defendant did not express any concern about his ability to pay, did not proffer any evidence that the fees or fine would impose an undue hardship, and did not request a hearing. He also did not raise a due process argument to the trial court. Thus, he has forfeited his claim. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [Dueñas challenge forfeited by failure to object to fines and assessments at sentencing]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejected argument that, because the defendant did not have the ability to pay, imposition of restitution fine under section 1202.4 was an unauthorized sentence not subject to the forfeiture rule]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant's claim regarding his ability to pay did not justify a deviation from the forfeiture rule].)
Even assuming no forfeiture, we would conclude any error under Dueñas was harmless beyond a reasonable doubt. There is nothing in the record indicating defendant, like the defendant in Dueñas, has a history of being unable to pay court assessments or that he has limited assets or income that he needs to devote to vital child-care needs. In fact, the record shows defendant was 20 years old at the time of sentencing and had no children or dependents. He told probation he was not working at the time of his arrest but that he supported himself with "side jobs here and there" and had previously worked for seven months as a roofer. Defendant also said that if the court were to grant him probation, he would look for work and complete the probation department's work plans. He did not point to any circumstances, such as a disability, to cast doubt on his ability to obtain the funds for payment in the future.
The substantive holding in Dueñas has been strongly criticized. (People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review granted November 26, 2019, S258946.) Because we conclude defendant has forfeited any challenge based on Dueñas and that any error was harmless, we need not determine whether the decision is correct.
Moreover, a defendant's ability to pay does not require existing employment or cash on hand. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) Rather, it can be based on a person's future ability to earn, including his ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Here, defendant will be serving time in prison and has the capacity to earn both during that time and after his release, unlike the defendant in Dueñas, who suffered from cerebral palsy and was not able to work. Based on the record, any reasonable trial court would have imposed the assessment and fines even if it had considered defendant's ability to pay under Dueñas. Accordingly, we conclude any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Jackson, J.