Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA043680 Bernie C. LaForteza and Charles (Carlos) Chung, Judges.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Following a jury trial, defendant, DeEdward Anderson Lester, was convicted of grand theft of personal property (Pen. Code, § 487, subd. (a); count 2) and receiving stolen property (§ 496, subd. (a); count 3). The court found defendant was previously convicted of a serious felony constituting a strike (§§ 667, subds. (b)-(i), 1170.12) and had served four prior separate prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code except where otherwise noted.
Defendant was sentenced to 10 years in state prison. He was ordered to pay a $2,200 restitution fine (§ 1202.4, subd. (b)(1)), a $2,200 parole revocation restitution fine (§ 1202.45), “$70 in court fees, ” and restitution to the victim. We reverse in part and remand with directions.
II. BACKGROUND
We view the evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466.) On the same date that two Toshiba laptop computers were stolen from Charles Deng’s home, defendant sold the laptops to a pawnshop -- Platinum Jewelry and Loan. Defendant told investigating officers he purchased the computers from a man he met on the street in front of the pawnshop. Defendant said he knew the laptops were stolen.
III. DISCUSSION
A. The Receiving Stolen Property Conviction
It was error to convict defendant of both grand theft and receiving the same property he had stolen. (§ 496, subd. (a); People v. Ceja (2010) 49 Cal.4th 1, 3-4, 10.) The receiving stolen property conviction must be reversed. (People v. Ceja, supra, 49 Cal.4th at pp. 3-4, 10.)
B. Sixth Amendment Right to Counsel
Los Angeles Sheriff’s Department Detective Mark Machanic was assigned to investigate a burglary of a home owned by Geraldo Rivera. An Apple laptop taken from the Rivera home was located at the Platinum Jewelry and Loan pawnshop. The detective visited defendant while he was in jail for crimes associated with the Deng burglary in order to question him about the Rivera burglary. Both the prosecutor and defense counsel agreed that defendant had been arraigned and appointed counsel on the Deng crimes when the detective spoke to defendant about the Rivera burglary.
The detective advised defendant of his Miranda rights and defendant agreed to waive those rights. Defendant then denied committing the Rivera burglary. He admitted he sold the stolen Apple laptop to the pawnshop and claimed he received the laptop from a man he met outside of the pawnshop. The conversation between the detective and defendant was admitted pursuant to Evidence Code section 1101, subdivision (b).
Miranda v. Arizona (1966) 384 U.S. 436.
This provision allows for the introduction of uncharged crimes evidence in order to prove, among other things, the intent required for the charged offense.
Defendant claims the evidence was obtained in violation of his Sixth Amendment right to counsel and, therefore, should have been excluded. He is incorrect. At the time Detective Machanic questioned him about the Rivera burglary, defendant’s right to counsel had attached only as to the Deng burglary. (McNeil v. Wisconsin (1991) 501 U.S. 171, 175; People v. DePriest (2007) 42 Cal.4th 1, 33.) “Even after an accused has counsel with regard to a particular charged offense, he or she may be questioned by police following Miranda advisements with respect to any uncharged offense.” (People v. Bradford (1997) 15 Cal.4th 1229, 1313, citing McNeil v. Wisconsin, supra, 501 U.S. at pp. 175-177.) Defendant’s statements about the Rivera burglary were admissible without violating his constitutional right to counsel. (Maine v. Moulton (1985) 474 U.S. 159, 180 & fn. 16; People v. Sully (1991) 53 Cal.3d 1195, 1233-1234.)
C. Impermissible Dual Use of Facts
Defendant asserts it was error to rely on his prior convictions to impose both the upper term for grand theft and the four one-year prior separate prison term enhancements. Defendant forfeited this argument by failing to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 356; see People v. Buttram (2003) 30 Cal.4th 773, 785.)
In any event, there was no error. In imposing the upper term, the trial court properly relied on defendant’s numerous prior adult convictions. (People v. Towne (2008) 44 Cal.4th 63, 76.) The trial court noted: “[H]e has an extensive criminal history starting in the 70’s, spanning the 80’s, the 90’s and then in 2000. He’s been to prison five times before. [¶] Based on that I am going to select the high term on count two....”
The four convictions charged as prior separate prison term enhancements were but a part of defendant’s extensive criminal record. The section 667.5 enhancements punished defendant for serving multiple separate prison terms for felonies and for failing to remain “free of both prison custody and the commission of an offense which results in a felony conviction.” (§ 667.5, subd. (b).) Section 667.5 imposes “punishment on a felon whose prior prison term failed to deter future criminality.” (People v. Bruno (1987) 191 Cal.App.3d 1102, 1107; accord, People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
Numerous prior convictions and prior prison terms served are separate aggravating factors. (Cal. Rules of Court, rule 4.421(b).) There was no impermissible dual use of facts. (People v. Mendoza (1986) 183 Cal.App.3d 390, 403.)
Because there was no impermissible dual use of facts, trial counsel was not ineffective for failing to make an objection he could reasonably determine would be futile. (See People v. Mendoza (2000) 24 Cal.4th 130, 165-166; People v. Price (1991) 1 Cal.4th 324, 387.)
D. Applicable Fines and Penalties
The trial court orally imposed an unspecified “$70 in court fees.” The oral pronouncement of judgment controls over the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Having been convicted on two counts, defendant was subject to $60 in court facilities assessments (Gov. Code, § 70373) and $60 in count security fees (§ 1465.8, subd. (a)(1)) even though the sentence on count 3 was stayed. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 [Gov. Code, § 70373]; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328 [§ 1465.8, subd. (a)(1)].) Defendant was also subject to a $10 crime prevention programs fine in connection with count 2 provided the trial court found an ability to pay. (§ 1202.5, subd. (a).)
Given that the trial court imposed $70 in fees, we may reasonably infer the trial court found defendant had the ability to pay (see People v. Crittle (2007) 154 Cal.App.4th 368, 371) and did impose the crime prevention programs fine. But that $10 fine was also subject to penalties, specifically, a $10 state penalty (§ 1464, subd. (a)(1)), a $7 county penalty (Gov. Code, § 76000, subd. (a)(1), a $2 state surcharge (§ 1465.7, subd. (a)), a $3 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)), a $1 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)), a $1 state-only DNA penalty (Gov. Code, § 76104.5, subd. (a)(1)), and a $2 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)). (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530.)
Although the abstract of judgment reflects $26 in penalties, the trial court never orally imposed those penalties. (People v. Mitchell, supra, 26 Cal.4th at p. 185 [trial court’s oral pronouncement of judgment controls].) Moreover, when assessing a defendant’s ability to pay, the trial court must consider the additional $36. (People v. Castellanos, supra, 175 Cal.App.4th at p. 1532.) Here, the trial court imposed only a $10 fine and had no occasion to determine defendant’s ability to pay $36—which is the total amount due. Therefore, the $10 section 1202.5 fine will be reversed. (People v. Castellanos, supra, 175 Cal.App.4th at p. 1530.) On remand, the trial court must decide whether to impose the section 1202.5 fine and if so, in what amount. If a fine is imposed, the trial court must also impose the penalties. (People v. Castellanos, supra, 175 Cal.App.4th at p. 1531; see People v. Woods (2010) 191 Cal.App.4th 269, 273-274.)
E. The Abstract of Judgment
The abstract of judgment is incorrect insofar as the trial court orally imposed a restitution fine and a parole revocation restitution fine each in the amount of $2,200, not $2,000. The abstract of judgment must be amended to reflect the judgment orally imposed and as modified by this opinion together with the section 1202.5 fine and penalties imposed on remand, if any. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell, supra, 26 Cal.4th at pp. 185-186).
F. Peace Officer Personnel Records
Defendant requests that we independently review the record in connection with his Pitchess motion pursuant to People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232. Defendant also requested production of any exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83, 87. We have independently reviewed the sealed reporter’s transcript of the in camera hearing and the sealed peace officer personnel records examined by the trial court in camera. No abuse of discretion occurred in connection with defendant’s pretrial peace officer personnel records disclosure motion. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Memro (1995) 11 Cal.4th 786, 832.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535.
IV. DISPOSITION
The receiving stolen property conviction is reversed. The $10 Penal Code section 1202.5 crime prevention programs fine is reversed. On issuance of the remittitur, the trial court must decide whether to impose a Penal Code section 1202.5 fine and if so, in what amount. If the fine is imposed, the trial court must also impose mandatory penalties. The judgment is affirmed in all other respects. The superior court clerk shall prepare an amended abstract of judgment and forward a copy to the California Department of Corrections and Rehabilitation.
We concur: ARMSTRONG, ACTING P. J., KRIEGLER, J.