Opinion
E070079
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. RANDY DEVANCE JONES, Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick, and Genevieve Herbert, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1500384) PUBLIC—REDACTED VERSION OF OPINION Redacts material from sealed record. (Cal. Rules of Court, rules 8.45, 8.46(f)(1) and (f)(2).) APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
This case involves material from a sealed record. In accordance with California Rules of Court, rule 8.46(f)(1) and (f)(2), we have prepared both public (redacted) and confidential, sealed (unredacted) versions of this opinion. We hereby order the unredacted version of this opinion sealed.
A jury convicted defendant Randy Devance Jones of burglary of an inhabited residence, and the trial court sentenced him to four years in state prison. Defendant appeals contending: (1) the trial court erred by denying his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to compel discovery of evidence of police misconduct without first conducting an in camera hearing; (2) the court abused its discretion by permitting the People to elicit inadmissible hearsay testimony from a police officer about a witness's prior identification of defendant as the driver who participated in the burglary; and (3) the court violated the ex post facto clauses of the United States and California Constitutions by imposing the $300 minimum victim restitution fine applicable at the time of sentencing instead the $280 minimum amount applicable at the time of the offense, and defense counsel rendered ineffective assistance of counsel by not objecting to the higher fine. The People concede the victim restitution fine must be modified.
We agree with the People's concession and direct the clerk of the superior court to correct the minutes of sentencing and the abstract of judgment to reflect the correct victim restitution fine and the correct amount for the related parole revocation restitution fine. Defendant's remaining claims of error are unpersuasive, so as modified we affirm the judgment.
I.
FACTS AND PROCEDURAL BACKGROUND
A. People's Case-in-chief.
F.R. and M.R. were neighbors in Cabazon. On October 10, 2013, M.R. left her home for work before 8:00 a.m. That afternoon, F.R. saw two Black men in front of M.R.'s house. One was standing next to a white or silver sedan parked in front, and the other came out of M.R.'s house carrying a television set and a black bag. She had never seen the men before. F.R. went to the end of her driveway and yelled at the men, "Hey, that's not yours. What are you doing?" The two men got into the sedan and drove off. F.R. took down the license plate number and called the police.
When M.R. returned home that afternoon, she found it had been ransacked and the police were there. A 50-inch television set had been removed from its stand in the living room and was on the floor near the front door. The drawers in her daughter's bedroom were open; clothes were out of place; and the mattress had been moved. The drawers and closet to M.R.'s own bedroom had been opened and a 46-inch flat screen television set was missing from its wall mount. In addition, M.R. discovered that a camera, an iPod, two laptop computers, and a duffel bag were missing from the house. When she left that morning, the back gate, kitchen window, and garage door had been closed, but they were open when she returned home that afternoon. M.R. did not know defendant and had not given him permission to enter her home.
A forensic technician employed by the Riverside County Sheriff's Department (department) lifted five latent prints inside M.R.'s home—on the outside of the kitchen window, on the closet door in M.R.'s bedroom, and three on the television set that was on the floor near the front door. A department fingerprint examiner ran the five prints through the California Identification System (CAL-ID) database. The print taken from the kitchen window matched G.W. The print taken from the closet door was a match for M.R.'s roommate. A print taken from the top right corner of the television set was a match for defendant's right middle finger. A print lifted from the bottom left corner of the television set matched the roommate. Finally, a print taken from the top left corner of the television set matched defendant's right palm.
The day after the burglary, Deputy Jolin asked F.R. to participate in an in-field showup. F.R. told the deputy that the man she was asked to look at (defendant) "could have been the guy," but she "couldn't be a hundred percent sure." She also told the deputy that the man "looked an awful lot like the driver," and she was 70 percent certain about her identification. When another deputy showed F.R. a photograph and asked her if it was the sedan she had seen, she was "fairly certain" it was the same vehicle.
Defendant was living with his girlfriend in Banning at the time of the burglary. The girlfriend owned a silver 2001 Chevy Cavalier sedan. Defendant used the vehicle to drive his girlfriend to work the morning of the burglary and dropped her off before 8:00 a.m. Defendant had access to the vehicle the rest of the day. He picked up his girlfriend from work around 4:00 p.m. The girlfriend knew G.W. from school, and she had previously given him permission to drive her vehicle.
B. Defense Case.
Defendant denied he was involved in the burglary. He testified he was not present at M.R.'s home on the day of the burglary; he did not know the street on which she lived; and he did not know M.R., her daughter, or her roommate. He had never seen F.R. until she testified in court. On the morning of the burglary, defendant used his girlfriend's car to drive her to work, and then drove her daughter to school. When he returned home, his associate G.W. was on the front porch. G.W. asked to borrow the vehicle to help a friend move. Defendant agreed, and G.W. drove off around 9:30 a.m.
Around 10:30 a.m., G.W. returned and asked if defendant wanted to buy a television set for $150. Defendant walked outside and saw a television set in the backseat of the car. The television set was leaned against the seat, so defendant lifted it up. After inspecting the television set, defendant declined to purchase it, and G.W. once again drove away. He returned the vehicle to defendant between 3:00 and 3:30 p.m. Defendant had no further contact with G.W. that day. The next morning, police arrived at defendant's home and told him his girlfriend's vehicle was suspected of being used in a burglary. Defendant then participated in the in-field showup. Defendant testified he believed the television set found near the front door to M.R.'s home was the same one G.W. had tried to sell him, but he had no idea how it ended up back inside her home.
C. Verdicts and Sentence.
A jury found defendant guilty on the sole felony count of burglary of an inhabited dwelling. (Pen. Code, § 459.) The trial court sentenced defendant to four years in state prison and ordered him to pay "the minimum fines and fees."
Defendant timely appealed.
II.
DISCUSSION
A. The Trial Court Properly Concluded Defendant's Pitchess Motion Failed to Establish Good Cause to Conduct an In Camera Hearing to Review Police Personnel Files.
Defendant argues the trial court abused its discretion by denying his Pitchess motion without requiring the custodian of records to produce police officer personnel files and conducting an in camera hearing to review the files for discoverable evidence of misconduct and/or citizen complaints. He requests that we conditionally affirm the judgment and remand for the trial court to conduct such an in camera hearing. Defendant did not present a specific and plausible factual scenario that the officers at issue engaged in misconduct or that relevant and material evidence of citizen complaints existed in their personnel files. Therefore, we find no abuse of discretion.
1. Additional background.
Before trial, defendant filed a statutory Pitchess motion (Evid. Code, §§ 1043, 1045) to compel discovery of evidence of misconduct or citizen complaints about Deputies Lopez and Paumier, two officers who took part in the investigation of the burglary. As part of a duty to disclose potentially exculpatory evidence, a deputy district attorney informed defendant's attorney of "potential Brady" evidence because Deputy Lopez had been terminated from his employment and Deputy Paumier had been placed on administrative leave.
Unless otherwise indicated, all additional statutory references are to the Evidence Code.
Brady v. Maryland (1963) 373 U.S. 83 (criminal defendant has a due process right to be informed of exculpatory evidence and evidence that may be used to impeach prosecution witnesses).
Defendant served the department and requested the trial court conduct an in camera hearing to determine whether the officers' personnel files contained discoverable evidence of and complaints about: (1) racist remarks; (2) false arrest; (3) false statements in police reports; (4) false claims of probable cause; (5) fabricated evidence; (6) failure to follow departmental procedures or policies regarding the gathering or processing of evidence, or neglect of duty; (7) false statements taken from witnesses; (8) false statements about education, training, or experience; (9) perjurious testimony; (10) exculpatory and impeachment evidence under Brady; and (11) any other evidence of or complaints about dishonesty that would bear on the credibility of evidence.
The motion indicated Deputy Lopez was one of two officers who responded to the 911 call; he interviewed F.R. and obtained a general description of two suspects; he entered M.R.'s home and located latent prints on the television set, which was located near the front entrance; he contacted defendant's girlfriend the next day and obtained a statement from her about her sedan possibly being used in the burglary; and he subsequently arrested defendant. Deputy Paumier's involvement in the case was limited to receiving the results from CAL-ID, which indicated defendant was a match for a fingerprint and a palm print lifted from the television set. Defendant argued his defense at trial would be "based upon police misconduct," but he did not allege any specific acts of misconduct by the officers in this or any other case. Instead, defendant argued evidence of misconduct or citizen complaints—if any existed—would be relevant and material to his defense.
In a supporting declaration, defendant's attorney stated the basis for Deputy Lopez's termination and Deputy Paumier being placed on administrative leave might be relevant and probative "if it involved fabrication of evidence, false accusations of persons [involved] in criminal activities, criminal behavior, or other material matters which would be relevant and probative to challenging the arrest and subsequent charges against defendant." (Italics added.) The motion set forth the basic facts of the case and stated defendant denied any involvement in the burglary. It did not, however, deny the facts as contained in the police reports or present an alternative story that would potentially raise the specter of police misconduct.
In its opposition, the department contended Deputy Lopez was only a "small player" in the investigation of the burglary, he arrested defendant on an outstanding warrant in another case and not for the alleged burglary, and he did not receive or lift any prints from the crime scene. In addition, the opposition indicated Deputy Paumier's sole involvement was his receipt of the CAL-ID results more than a year after the alleged burglary. The opposition argued that, other than claim his innocence, defendant did not deny or dispute anything contained in the police reports and he did not present a specific and plausible factual scenario of misconduct. In short, the department argued defendant's motion failed to establish good cause for discovery of the officers' personnel files and was nothing more than a fishing expedition.
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2. Applicable law.
Personnel files of peace officers and reports of citizen complaints created and maintained pursuant to Penal Code section 832.5 are confidential and may not be obtained in discovery in any proceeding except pursuant to the statutory Pitchess procedure. (Pen. Code, § 832.7, subd. (a).)
"To obtain Pitchess information, the defendant must file a written motion. (§ 1043, subd. (a).) It must describe 'the type of records or information sought' and include '[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.' (§ 1043, subd. (b)(2) & (3).) This good cause showing is a 'relatively low threshold for discovery.' [Citation.] Assertions in the affidavits 'may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information.' [Citation.] If the defendant establishes good cause, the court must review the records in camera to determine what, if any, information should be disclosed. ([citation]; § 1045, subd. (b).)" (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70-71.)
"The supporting affidavit 'must propose a defense or defenses to the pending charges.' [Citation.] To show the requested information is material, a defendant is required to 'establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' [Citation.] The information sought must be described with some specificity to ensure that the defendant's request is 'limited to instances of officer misconduct related to the misconduct asserted by the defendant.'" (Garcia v. Superior Court, supra, 42 Cal.4th at p. 71.)
"Counsel's affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. [Citation.] 'That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.' [Citation.] 'In other cases, the trial court hearing a Pitchess motion will have before it defense counsel's affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant's averments, "[v]iewed in conjunction with the police reports' and any other documents, suffice to "establish a plausible factual foundation" for the alleged officer misconduct and to "articulate a valid theory as to how the information sought might be admissible" at trial.' [Citation.] Corroboration of or motivation for alleged officer misconduct is not required. [Citation.] Rather, 'a plausible scenario of officer misconduct is one that might or could have occurred.' [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.] 'A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial.' [Citation.] A defendant who meets this burden has demonstrated the materiality requirement of section 1043." (Garcia v. Superior Court, supra, 42 Cal.4th at p. 71.)
We review the order denying defendant's motion for abuse of discretion. (People v. Anderson (2018) 5 Cal.5th 372, 391.)
3. Analysis.
As indicated, ante, defendant's motion and the supporting declaration of counsel did not allege Deputies Lopez and Paumier engaged in acts of misconduct in this or any other case. Nor did defendant dispute the investigative facts set forth in the police reports or present an alternative narrative that conflicted with the reports and strongly hinted at misconduct of one form or another. Instead, defendant's motion was premised entirely on the claim that the officers' personnel files might possibly contain evidence of misconduct or citizen complaints. And defendant argued that evidence, if it existed, would be relevant and material to a defense of police misconduct and would enable defendant to impeach those officers and to call into question the credibility of inculpatory evidence.
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In other words, defendant failed to establish good cause, and the trial court properly denied the motion without conducting an in camera hearing.
And even if we were to conclude defendant made a showing of good cause for an in camera hearing, we may conditionally reverse only if defendant was prejudiced. (People v. Samuels (2005) 36 Cal.4th 96, 110 [Pitchess error subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 836-837].) Neither Deputy Lopez nor Deputy Paumier were called as witnesses during defendant's trial, so potential evidence of misconduct or citizen complaints in their personnel files would not have been relevant and material to impeach their testimony.
Nor would evidence of misconduct have served to advance the defense presented at trial. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1100, fn. 8 [prejudice analyzed in light of defense presented at trial], disapproved on another ground by People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Although Deputy Lopez took F.R.'s statement at the scene and obtained her description of the suspects and the vehicle used during the burglary, defendant did not claim those witness statements were coerced or fabricated. Deputy Lopez did not arrest defendant for the alleged burglary, so potential evidence of misconduct or bias would not have been relevant and material to establishing a lack of probable cause for his arrest on the burglary charge. And, although he assisted Deputy Jolin in conducting the in-field showup (see, infra), Deputy Lopez did not read the admonition to F.R. or take her statements and identification. Moreover, although at trial defendant argued F.R.'s 70-percent identification was worthless, he did not dispute that she made such an identification. Therefore, evidence that Deputy Lopez had previously falsified witness statements or reports would not have supported the defense. Finally, although Deputy Lopez retrieved the prints processed by a forensic technician and Deputy Paumier received the results from CAL-ID two years later, defendant did not deny that he touched the television set. And he did not claim that the print evidence had been tampered with, so potential evidence of misconduct in the collection or handling of evidence in the officers' personnel files would not have advanced the defense.
In his briefs, defendant cites to a news article published three days after the trial court denied his Pitchess motion. The article indicates Deputy Lopez had previously been disciplined for (1) mishandling of evidence and failing to follow departmental policy on handling evidence, (2) off-duty misconduct, and (3) insubordination. Because the article was not before the trial court when it ruled on the motion, we decline to consider it. And even if we did, for the reasons stated in the text, evidence that Deputy Lopez mishandled evidence would not have supported the defense presented at trial because defendant did not deny that he touched the television set from which his prints were lifted and he did not claim the print evidence had been falsified, mishandled, or otherwise compromised.
B. The Trial Court Properly Admitted Testimony About a Prior Identification of Defendant as the Driver During the Burglary.
Defendant argues the trial court erred prejudicially by permitting the People to elicit hearsay testimony from a deputy about statements F.R. had made during the in-field showup. The deputy testified that, after being asked to look at defendant, F.R. said he "looked a lot like" and "looked an awful lot like" the man she had seen standing next to the sedan during the burglary. Defendant failed to object to the line of questioning on hearsay grounds, so he has forfeited his claim of error. In any event, we conclude the testimony was properly admitted under the hearsay exception for prior identifications and, even if the evidence should have been excluded, defendant suffered no prejudice.
1. Additional background.
F.R. testified the man she saw standing near the sedan during the burglary "was probably six-foot plus and kind of stocky, clean cut, kind of a chiseled face." The man she saw come out of the house carrying a television set and a duffel bag "was very thin and had freaky hair sticking out and very, very dark skin." The day after the burglary, the police asked her to participate in an in-field showup. Deputy Jolin read a standard admonition to F.R., and she agreed to participate. She was asked to sit inside a police car and look at a suspect who was brought out the back door of the police station into a secure parking lot. A different officer—Deputy Lopez—brought out defendant so F.R. could look at him.
On direct examination, the prosecutor asked F.R., "Do you recall whether you were a hundred percent sure it was the individual or less?" She answered, "Less." When asked if she recalled telling Deputy Jolin "that you did believe that was the individual," F.R. replied, "No, I never said that." When asked if her memory of the in-field showup was fresher in her mind when it occurred four years earlier, she answered, "Probably, yes." F.R. said she had been completely honest in her statements to Deputy Jolin. She did not remember saying she thought the suspect was "likely" the same man she had seen the day before. When asked if she made any statements to the effect that she believed the suspect was the one she had seen during the burglary, she replied, "I might have said that could have been the guy, but I couldn't be a hundred percent." F.R. testified she only watched the two men "for about a minute" before she ran down the driveway and yelled at them. When asked if the person she had been shown during the in-field showup was in the courtroom, she answered, "I don't think so."
On cross-examination, F.R. once more testified she only looked at the two men for "[m]aybe a minute" before she yelled at them. When asked if defendant was one of those men, she answered, "I don't believe so." She testified the man standing near the sedan had a squarer face than defendant. F.R. testified she did not tell Deputy Jolin, "That was the person I saw." Defense counsel then asked, "So both today and back on October the 11th, 2013, when asked both times, here in court, [and] by the deputy of the sheriff's station, is it the individual we're presenting to you, you both times said no?" F.R. answered, "Correct." But she immediately qualified her answer by stating, "Excuse me. The first time I didn't say no. I said I couldn't be a hundred percent." When asked, "You couldn't identify that individual," she replied, "No." And when asked, "In fact, you weren't even close to identifying that individual, right? You—70, 30," she answered, "Probably."
F.R. was asked on redirect if she recalled telling Deputy Jolin, "he looks like the driver of the vehicle, but I'm not positive." F.R. answered, "I don't remember that. [¶] I possibly could have, but I don't remember." When asked if she recalled saying the suspect "looked an awful lot like the driver," she replied, "No, I don't remember saying that." F.R. said her recollection would be refreshed if she were shown the police report. After reviewing the report, and stating her recollection had been refreshed, she testified she did tell Deputy Jolin that the suspect "looked an awful lot like the driver."
On further cross-examination, F.R. testified she did not independently remember telling Deputy Jolin that the suspect looked "an awful lot like the driver," but that after reading the report she "vaguely" remembered doing so. Counsel asked, "You also indicated that you're not positive?" She replied, "Correct." When asked, "And you cannot make a hundred percent identification," she answered, "Correct." She gave the same response when asked, "And you even indicated at one point that [you] might be like 70/30, right?" F.R. testified she told the deputy that the suspect "[l]ooks like the driver" because she had been shown a relatively tall Black man, and the person she had seen standing near the sedan was a tall Black man. She testified the man she saw standing near the sedan had a chiseled face, and that feature stood out and made her take notice. She again testified defendant did not have a chiseled face, and she added defendant was older than the man she had seen next to the sedan.
On further redirect, F.R. testified she told Deputy Jolin, "I didn't look at the driver too much because I was looking at the guy who was carrying the bag." She agreed it was fair to say her attention was mostly directed toward the man carrying the property out of the house and putting it into the sedan. The prosecutor asked, "When you say you were 70 percent sure, you were 70 percent sure that the individual that the police had was the driver of the vehicle?" F.R. answered, "Yes." F.R. testified it was "possible that we can look older" over a four-year period, and she agreed that "sometimes people gain weight or lose weight over a period of years."
Finally, on further cross-examination, F.R. was asked, "Despite the passage of time, even when you looked at the individual who was presented to you back on October 11th, 2013, that person didn't have a chiseled face that you recognized as being the driver, right?" She replied, "Back then, I really can't remember." And when asked, "As you looked at that individual, there was nothing that led you to say, yes, that's the person," she answered, "Exactly, yes."
After F.R. was excused, defense counsel stated, "I understand the People's next witness is Deputy Jolin, and I anticipate maybe a good portion of the deputy's testimony will be in reference to statements that a previous witness, [F.R.], made. And I think, actually, that's unnecessary. This isn't impeachment because I heard [F.R.] testify that she in fact agreed with the statements as were documented by Deputy Jolin. Essentially, she confirmed her original statements back in 2013, so I don't think we need Deputy Jolin to impeach. It's not impeachment." The court responded, "We're just going to have to go question by question, because I can see [the prosecutor] wanting to put [Deputy Jolin] on as to [whether] he gave an admonishment to [F.R.], what the admonishment was, [whether it] set her at ease, maybe things of that nature. But if it has already been covered, you can object." Counsel stated he had no objection to Deputy Jolin testifying about the admonishment and the in-field showup procedure.
Deputy Jolin testified he conducted the in-field showup in which F.R. was asked to look at defendant. The prosecutor asked, "Now, [F.R.], here in court, she said that she did not see anyone here in court that was the same individual who did that particular show-up. Is that consistent with the actual interaction you had with [F.R.]?" He answered, "No." When asked, "During your interaction with [F.R.], did she describe anything about chiseled features," he replied, "No." The trial court overruled defendant's hearsay objection to the answer. The prosecutor then asked, "Now, was [F.R.] able to make any type of identification?" Deputy Jolin answered, "Yes." When asked, "How positive was [she]," he answered, "She stated she was 70 percent sure that he was the driver of the vehicle." And when asked, "How many times did [she] make comments to you . . . that she believed him to be the driver of the vehicle," he replied, "I believe three times."
On cross-examination, Deputy Jolin testified F.R. "had a clear and unobstructed view" of defendant during the in-field showup; she was "within close proximity" of defendant and was "able to take a good look at him"; the parking lot "was well-lit"; there were "[n]o shadows being cast over [defendant's] appearance"; and he "observed [F.R.] actually take a good long look" at defendant. Defense counsel asked, "And she told you that she cannot be—cannot identify him as the driver?" Deputy Jolin answered, "No. I mean—." Counsel interrupted the answer, and asked, "She did not say—she did not look at him for a minute or so and turn to you and say, yeah, that's him?" He replied, "Correct." Counsel then asked, "In fact, she didn't even come close to being a hundred percent about him, correct?" He answered, "Correct." Deputy Jolin testified he asked F.R. to give her best estimate and "pressed her a little bit." F.R. told Deputy Jolin she was 70 percent sure the suspect was the driver, but she also said she could not make "a one hundred percent identification."
On further direct examination, Deputy Jolin testified the quoted statements from F.R. contained in his police report were her exact words. At no point did she say "[N]o, that is not the individual involved." Even before Deputy Jolin pressed F.R. and asked her to place a percentage on her identification, she twice said she believed the suspect was the driver.
Finally, on further cross-examination, Deputy Jolin testified F.R. never "positively identified" defendant as the driver.
2. Applicable law.
Unless otherwise provided, all relevant evidence is admissible. (§ 351.) Absent an exception, out-of-court statements offered for their truth are inadmissible hearsay. (§ 1200, subds. (a)-(b).) "Evidence Code section 1238 establishes an exception to the hearsay rule for a statement that identifies a party or other person as a participant in a crime or other occurrence, 'if the statement would have been admissible if made by [the witness] while testifying . . . .' The statute requires that the statement have been made when the crime was fresh in the witness's memory, and that 'the evidence of the statement is offered after the witness testifies that he [or she] made the identification and that it was a true reflection of his [or her] opinion at that time.' (Evid. Code, § 1238.)" (People v. Redd (2010) 48 Cal.4th 691, 728.)
The prior identification need not be positive or made with 100 percent certainty for the hearsay exception to apply. (See People v. Redd, supra, 48 Cal.4th at p. 729 [90-95% certainty]; People v. Boyd (1990) 222 Cal.App.3d 541, 567 [witness's 75-80 % certain identification of someone other than defendant as the culprit should have been admitted].) "'We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion.'" (People v. Henriquez (2017) 4 Cal.5th 1, 31.)
3. Analysis.
As the People correctly note, defendant did not object below that Deputy Jolin's testimony about F.R.'s identification and statements during the in-field showup was inadmissible hearsay. "Evidence Code section 353 provides, as relevant, '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 . . . .' (Italics added.) 'In accordance with this statute, [our Supreme Court has] consistently held that the "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, 433-434.)
Defense counsel argued Deputy Jolin should not be called as a witness to impeach F.R. because in her testimony, she agreed she had made the statements recorded in Jolin's report. Counsel did not object on hearsay grounds when the deputy testified that F.R. identified the suspect as the driver, albeit with only 70 percent certainty, or when he testified about F.R.'s statements. Therefore, defendant has forfeited on appeal his claim that the testimony was inadmissible hearsay evidence because it did not satisfy the requirements of section 1238. (People v. Redd, supra, 48 Cal.4th at p. 729 ["Defendant did not object to the testimony . . . concerning . . . out-of-court identifications, and therefore forfeited his contention as to these witnesses."].)
Defendant did object on hearsay grounds when the prosecutor asked Deputy Jolin if F.R. had said anything about chiseled features, but that was the extent of his objections to the deputy's testimony. We are not persuaded by defendant's assertion that this lone and narrow objection placed the trial court on notice that defendant objected more broadly on hearsay grounds to the deputy's testimony about F.R.'s identification or about her statements made during the in-field showup.
Even if defendant had timely objected on hearsay grounds, we conclude Deputy Jolin's testimony was admissible. Defendant argues the People did not establish the requirement under section 1238, subdivision (c), that "the witness testif[ied] that he [or she] made the identification and that it was a true reflection of his [or her] opinion at the time." Defendant concedes the witness need not "recite verbatim" the language of the statute but argues they "must nonetheless testify sufficiently to establish that the identification was a true reflection of his or her opinion at the time." Defendant argues Deputy Jolin's testimony was inadmissible hearsay because F.R. did not independently remember identifying defendant.
Contrary to the suggestion in defendant's briefs, F.R. did independently remember making her less than 100 percent identification of the suspect as the driver. What she did not independently remember was exactly what she had said to Deputy Jolin. Specifically, F.R. did not remember saying the suspect "looked a lot like" or "looked an awful lot like the driver." Earlier, she had testified the specifics of the in-field showup were fresher in her mind in 2013 than when she testified four years later, and she had been completely honest in her statements to Deputy Jolin. After reading Deputy Jolin's report, F.R. testified her memory of what she had said had been refreshed. The prosecutor then asked, "Did you make those statements to the deputy?" She gave the unqualified answer, "Yes." True, during further cross-examination F.R. testified she did not independently remember making those specific statements, i.e., that the suspect "looked a lot like the driver" and "looked an awful lot like the driver." And she testified that, even after reading the report, she only vaguely remembered making them. But not once did F.R. testify she only vaguely remembered making a 70 percent identification of the suspect as the driver.
Finally, even if Deputy Jolin's testimony about F.R.'s statements should have been excluded as inadmissible hearsay, the error was harmless. Error in the admission of a hearsay prior identification is reversible only if it resulted in a miscarriage of justice, meaning it is reasonably probable a defendant would have received a more favorable result had the evidence been excluded. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Redd, supra, 48 Cal.4th at p. 730; People v. Rodrigues (1994) 8 Cal.4th 1060, 1118.)
To repeat, F.R. herself testified that during the in-field showup, she identified the suspect (defendant) as the driver, albeit with only 70 percent certainty. Although at trial she did not recognize defendant as the man she had seen during the burglary or as the man she had identified during the in-field showup, she agreed her memory was better at the time of the identification, and that it was possible defendant's appearance had changed with the passage of time. Deputy Jolin's testimony merely served to establish what F.R. had said when she made the identification.
And there is no dispute whatsoever that defendant's fingerprint and palm print were discovered on the television set, which was removed from its stand during the burglary and left on the floor near the front door. Defendant never denied that he had touched the television set, although he denied having entered the victim's home. His explanation for how his prints ended up on the television set—that he had inspected the television set in the backseat of his girlfriend's sedan at his Banning residence when his associate G.W. tried to sell him it to him, and that later the television set somehow ended up back inside M.R.'s Cabazon home—in no way lessened the impact of that compelling evidence of guilt.
C. The Victim Restitution and Parole Revocation Restitution Fines Must Be Modified to Reflect the Minimum Fines Applicable at the Time of Defendant's Offense.
Last, defendant contends the trial court violated the ex post facto clauses of the United States and California Constitutions by imposing the $300 minimum victim restitution fine applicable at the time of sentencing, instead of the $280 minimum fine applicable at the time of his offense. In addition, defendant argues his trial counsel rendered constitutionally ineffective assistance of counsel by not objecting to the greater fine. He requests that we modify the fine appropriately. The People concede the victim restitution fine must be modified to reflect the minimum amount applicable at the time of the offense instead of the time of sentencing but contend defendant's attorney did not render ineffective assistance of counsel. We agree with the People's concession and direct the clerk of the superior court to modify the victim restitution and related parole revocation restitution fines appropriately. Therefore, defendant's claim of ineffective assistance of counsel is moot.
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (Pen. Code, § 1202.4, subd. (b).) "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense." (Id., subd. (b)(1).) The statute sets forth the minimum and maximum fine available. (Ibid.) In addition, the court must impose a parole revocation restitution fine in the same amount as the restitution fine. (Pen. Code, § 1202.45, subd. (a).) "It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions." (People v. Souza (2012) 54 Cal.4th 90, 143.) A trial court violates the ex post facto clause if it imposes a restitution fine in the minimum or maximum amount applicable at the time of sentencing instead of a lesser amount applicable at the time of the offense. (Ibid.)
At the time of defendant's October 2013 offense, the minimum victim restitution fine (and related parole revocation restitution fine) in a felony case was $280. (Pen. Code, former § 1202.4, sub. (b)(1); Stats. 2012, ch. 873, § 1.5.) In its oral pronouncement of sentence, the trial court ordered defendant to pay "the minimum fines and fees" without indicating a specific dollar amount. However, the minutes of sentencing and the abstract of judgment prepared by the court clerk indicate defendant was ordered to pay a $300 restitution fine and a concomitant $300 parole revocation restitution fine, the minimum fines applicable at the time of defendant's February 2018 sentencing hearing. (Pen. Code, § 1202.4, subd. (b)(1); Stats. 2017, ch. 101, § 1, eff. Jan. 1, 2018.)
We agree with the parties that the victim restitution fine must be corrected to reflect the $280 minimum applicable at the time of defendant's offense. Therefore, we direct the clerk of the superior court to correct the minutes and abstract of judgment to reflect minimum restitution and parole revocation restitution fines of $280. Because on this issue we give defendant the relief he seeks, his claim of ineffective assistance of counsel is moot, and we will not address it further. (See People v. Thiel (2016) 5 Cal.App.5th 1201, 1218, fn. 7 ["Defendant's additional argument that he allegedly received ineffective assistance of counsel is moot in light of our disposition in this case."].)
III.
DISPOSITION
The clerk of the superior court is directed to correct the minutes of sentencing and the abstract of judgment to reflect a minimum restitution fine of $280 and a minimum parole revocation restitution fine of $280. The clerk shall forward the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
As corrected, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.