Opinion
A167854
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. SHUNTEL MARQUIN JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 22CR001410)
BURNS, J.
Shuntel Marquin Jones appeals from several theft-related convictions, arguing that his trial attorney committed ineffective assistance of counsel. We conclude his challenges lack merit, so we affirm his convictions. Because the minute order prepared by the clerk after Jones's sentencing references fines and fees never imposed by the trial court, however, we remand for the court to determine the amounts and bases of any fines or fees to be imposed on Jones.
Background
A jury convicted Jones of second degree commercial burglary under Penal Code section 459 (count four); grand theft of personal property under section 487, subdivision (a) (count five); two counts of receiving stolen property under section 496, subdivision (a) (counts six and seven); and four other offenses (counts eight through 11) not at issue in this appeal. For convictions for second degree commercial burglary and grand theft of personal property, the value of the stolen items must exceed $950. (See People v. Jennings (2019) 42 Cal.App.5th 664, 670-671; § 487, subd. (a).) For receipt of stolen property, the offense is a felony if the value of the items in question exceeds $950; otherwise, the offense is a misdemeanor. (§ 496, subd. (a).)
Undesignated statutory references are to the Penal Code.
At the time of the offenses, Jones was unemployed and had no income. Jones had been kicked out of his family's home in Calistoga after he threatened to hurt his mother. The commercial burglary and grand theft convictions (counts four and five) both involved an incident in which Jones took a bicycle, shorts, and gloves worth over $1,600 from the Calistoga Bike Shop. The conviction for receiving stolen property in count six pertained to numerous items taken from an Ace Hardware Store and later found in Jones's possession; the evidence at trial indicated that the total value of the unpaid Ace Hardware merchandise was over $1,200. And the receipt of stolen property at issue in count seven involved an $11,000 electric bicycle from the Calistoga Bike Shop that police subsequently recovered from Jones.
Because the judge who presided over his trial was on medical leave at the time of sentencing, Jones-who had been in custody for nearly a year-agreed to be sentenced by a different judge. In his sentencing memorandum, Jones requested that the felonies in counts four through seven be reduced to misdemeanors because the verdict forms did not require the jury to find that the value of the relevant items exceeded $950. Jones also requested that the felony conviction in count six be reduced to a misdemeanor because the value of the Ace Hardware items was improperly aggregated to reach the $950 threshold. Reluctant to review purported errors by another trial judge, the sentencing court declined to rule on these requests.
The court proceeded to sentence Jones to 16 months in prison for count five; a concurrent term of 16 months for count six; a concurrent term of 16 months for count seven; and a term of 16 months for count four which the court stayed pursuant to section 654. The court also imposed four other concurrent terms ranging from 180 days to 325 days on counts eight through 11 not challenged in this appeal. Because Jones had 649 days of custody and conduct credits, which exceeded the 16-month sentence imposed by the court, the court ordered him immediately released.
At the sentencing hearing, the court did not impose any fines or fees. The subsequent minute order nonetheless referenced a $300 restitution fine, as well as a $560 assessment fee ($70 for each of counts four through 11).
Discussion
A.
Challenging his convictions on counts four through seven, Jones claims that his trial attorney was ineffective. To establish ineffectiveness of counsel in violation of the Sixth Amendment to the United States Constitution, Jones must show that his attorney's performance was deficient and that the attorney's deficient performance prejudiced his defense, depriving him of a fair trial. (See Strickland v. Washington (1984) 466 U.S. 668, 687.)
1.
Jones contends that his counsel was ineffective in failing to request that the verdict forms for counts four, five, six, and seven specify that the stolen items were worth over $950, in violation of section 1157, and thus the jury never made a finding on the value. We disagree.
Section 1157 requires that, "[w]henever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury . . . must find the degree of the crime . . . of which he is guilty."
With respect to count four, for commercial burglary of the Calistoga Bike Shop, Jones has not established error under section 1157 because the jury expressly found on the verdict form that Jones was guilty of "Second Degree Commercial Burglary in violation of Penal Code Section 459." Nor would requiring an express finding, on the verdict form, that the value of the bicycle, shorts, and gloves at issue exceeded $950 have made any difference in the trial. Jones did not contest "that there's sufficient evidence to convict" him on count four. The prosecution introduced evidence that the items were worth $1,642.50. Further, the jury instructions for count four made clear that to find the defendant guilty of burglary under section 459, "the People must prove that: [¶] . . . [¶] [t]he value of the property taken . . . was more than $950.00." Thus, if the jury concluded the value of the property was less than $950, it would have found Jones not guilty on count four. Instead, the jury's guilty verdict reflects that it found, consistent with the evidence, that the value of the items exceeded $950.
Jones's ineffective assistance of counsel claim concerning count five, for grand theft of personal property from Calistoga Bike Shop, likewise fails. In the verdict form, the jury expressly found Jones guilty of "Grand Theft in violation of . . . Section 487[, subdivision] (a)," so the jury specified the degree of the offense. (See § 486 (providing that "[t]heft is divided into two degrees, the first of which is termed grand theft; the second, petty theft").) Jones is also unable to establish prejudice from the claimed error. The court instructed the jury that "[i]f you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft. [¶] The defendant committed petty theft if he stole property worth $950 or less. [¶] The defendant committed grand theft if the value of the property is more than $950." As a result, the jury's conclusion on the verdict form that Jones was guilty of grand theft reflects the jury's finding that the property he stole from the shop was worth more than $950, consistent with his concession at trial that the evidence on count five was sufficient for conviction.
Jones's claims as to the verdict forms for counts six and seven, for receiving stolen property under section 496, fare no better. As the People assert, section 1157 applies only to convictions for crimes "which [are] distinguished into degrees," but section 496 does not divide the offense into degrees. Jones concedes in his reply brief that "section 1157 does not apply to convictions for receiving stolen property." (See People v. Mendoza (2000) 23 Cal.4th 896, 910; People v. Dunaway (1963) 222 Cal.App.2d 322, 331.) Further, Jones is unable to establish prejudice based on the verdict forms' omission of a specific finding that the goods at issue in counts six and seven exceeded $950 in value. The jury instructions for both counts stated that "[i]f you have a reasonable doubt whether the property received has a value of more than $950, you must find this allegation has not been proved." The prosecution introduced evidence that the unpaid merchandise from Ace Hardware at issue in count six was worth $1,251.51 And a witness valued the electric bicycle at issue in count seven at $11,000.
2.
Jones next argues that his trial attorney was ineffective in failing to obtain a ruling on his request that his conviction for receipt of stolen property from Ace Hardware (count six) be reduced to a misdemeanor because the value of the unpaid merchandise was improperly aggregated to reach the $950 felony threshold. The record reflects, however, that Jones elected to go forward with sentencing without waiting for a ruling.
At the outset of the sentencing hearing, the sentencing judge addressed the fact that the trial judge was unavailable until the following month, and Jones elected to proceed with sentencing that day. After noting that it had reviewed both the defendant's sentencing memorandum and the prosecution's, the court acknowledged some of the issues Jones had raised, stating "[i]t looks like we are really talking about some concerns that could potentially go up on appeal." Addressing Jones's request to reduce some of his convictions to misdemeanors, the court stated: "[My] concern . . . is that I don't get to act as an appellate court for another [trial] judge. Certainly, if this were my trial and I could take corrective action if I fail to properly instruct, if that's the case, and it would be appropriate at this point then to designate some of these charges misdemeanors, then I would do so, but it wasn't my trial. [¶] . . . [¶] . . . Essentially I would be acting as an appellate court for another [trial] Judge's conduct at the trial." The court then gave Jones two options, stating: "if you want to wait for [the trial judge] to return and address these issues, I'm fine with that. [¶] In the alternative, . . . if we are going to proceed with sentencing, . . . I won't be trying to correct any perceived errors by the trial judge." Defense counsel replied that "Mr. Jones would like to proceed today." Referring to Jones's request that the court "designat[e] . . . Counts Four through Seven as misdemeanors because of the omissions or errors," his counsel stated, "I'm fine if the Court wants to defer the issue of . . . whether or not by operation of law they are misdemeanors or not."
The court then discussed the sentence she was considering as well as Jones's custody credits. The court stated that the contemplated sentence would amount to 725 days (comprised of 16 months on one count and a consecutive eight months on another count); given that Jones had 649 days (or over 21 months) of custody credits, he would have approximately 76 more days to serve. The court noted that under the contemplated sentence, Jones would have enough time in custody to wait for the trial judge to return and issue a ruling on his motions. The court reiterated that "if you have legitimate concerns about what happened at trial, it may make more sense to just have [the trial judge] address those issues." In response, Jones asked, "Can't you sentence me today?" He added, "I just take my time. I don't care no more." Defense counsel then successfully urged the court to impose a 16-month sentence, such that Jones would be "released forthwith."
Based on this record, the People contend, and we agree, that there was no ineffective assistance of counsel because defense counsel made a reasonable tactical decision, based on Jones's express wishes, to forgo waiting for the trial judge to return to obtain a ruling on his request. The court made clear that he had the option of waiting for a ruling on his motions, and Jones himself rejected that option. The contemplated sentence reflected that the court planned to select concurrent terms for most of the counts, so reducing count six to a misdemeanor was unlikely to make a difference in the amount of time Jones would have to serve. And in light of Jones's wish to be sentenced immediately, defense counsel reasonably decided to focus on persuading the court to impose a time-served sentence. We will not second-guess defense counsel's decision here, particularly given Jones's adamant wish to be sentenced right away. (See People v. Lewis (2001) 25 Cal.4th 610, 674-675; People v. Scott (1997) 15 Cal.4th 1188, 1212.)
We therefore reject Jones's ineffective assistance of counsel claim as to count six.
B.
Finally, the parties agree that a remand is necessary because, although the minute order refers to a $300 restitution fine and $560 in assessments, the court did not impose the fine and fees during the sentencing hearing. The parties also agree that on remand, Jones may raise any challenges he may have based on his inability to pay fines and fees.
The court's oral pronouncement of Jones's sentence is the judgment, and the minute order may not add anything substantive to the sentence pronounced by the court. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) Because any fines or fees must be stated on the record, we remand the case to the trial court to determine any fines and fees to be imposed on Jones. (See People v. El (2021) 65 Cal.App.5th 963, 967-968.)
Disposition
The trial court is directed to prepare amended minutes of the May 12, 2023, sentencing hearing to delete all references to a $300 restitution fine and to an assessment fee of $70 on counts 4 through 11 totaling $560. The case is remanded for the trial court to determine the amounts and statutory bases of any fines or fees to be imposed on Jones. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified and forward a certified copy to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
WE CONCUR: SIMONS, ACTING P.J., CHOU, J.