Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR548790.
KLINE, P.J.
In a bifurcated trial, a jury found Nicholas Luchessa Mejia not guilty of vehicle theft (Veh. Code, § 10851, subd. (a)–count I), but guilty of obtaining or concealing a stolen vessel (2005 Ford Focus) (Pen. Code, § 496d, subd. (a)–count II) and receiving stolen property (keys to that vehicle) (§ 496, subd. (a)–count III). The court then found true a 2006 conviction for auto theft, charged as an enhancement to count II (§ 666.5) and a prison term prior (§ 667.5, subd. (b)). At sentencing, the court found that double punishment for counts II and III was prohibited by section 654. It accordingly selected the enhanced count II for punishment, imposing an upper term of four years for that count (§§ 496, subd. (a), 666.5), and staying count III. To the unstayed four years the court added one more for the prison term prior, bringing the total to five years.
All undesignated section references are to the Penal Code.
Mejia appeals, claiming error in admitting evidence of uncharged crimes and excluding a defense witness’s testimony, plus ineffective assistance of trial counsel for not objecting to identification testimony from a parole agent. The People raise a further issue, requesting correction of an unauthorized sentence.
We remand for correction of the sentence, but otherwise affirm the judgment.
Background
All counts concern a theft of car keys and a car from Home Depot employee Lill Ann Folger, while she worked at the store in Windsor on Sunday, July 20, 2008. The keys were taken from her work station and used to take her car, parked outside. The car was discovered the next day, key in the ignition, abandoned at a hotel. The main issue at trial was identity, and Mejia presented an alibi defense, the weakest points being that store videos appeared to show him there and that store records also showed a transaction made using his driver’s license.
Case-in-Chief
Folger was on duty that Sunday, at her work station near the store entrance, across from the return desk, when she walked away around 4:30 p.m., near the end of her shift, to use a fax machine. She left a set of keys—house, car, locker and a “fob” that unlocked her car when pressed—on the seat of her chair. They were gone when she got back, and a search of the area and inquiry of coworkers and manager yielded nothing. When she went out to the parking lot where she had left her white Ford Focus locked that morning (license plate “FOLGER 1”), the car was gone, too. Police were called, and she reported the theft to Sonoma County Sheriff Deputy Officer Carlos Chavez, who was working on assignment to the Windsor Police Department.
Ken Murakami, general manager at the Fountaingrove Inn, saw the car parked outside the lobby when he came on duty the next morning at 8:00 a.m., and was told it had been there several hours. When he checked the car later that morning, he saw a key in the ignition, grew suspicious, and called police. He gave police the license plate number, and was told not to touch anything while they sent out an officer. Folger got a phone message from police that afternoon and, the next morning, identified the car at a tow yard. Only the ignition key was there. The car was dirty, with its contents and her possessions “cleaned out, ” and her CD player jammed. Just two fingerprints were lifted from the car, one each on the inside and outside of the left front window frame, and both were Murakami’s.
Michael McFadden, a California Highway Patrol officer serving as a detective with the Sonoma County Auto Theft Task Force (the task force), worked with Sonoma County Sheriff deputies and a Home Depot asset protection specialist to investigate the thefts. Mejia was implicated through a combination of store transaction records and security videos, and records from the California Department of Motor Vehicles (DMV) and a state parole database.
Mejia was captured on surveillance video that jurors and witnesses viewed. Overhead cameras behind and in front of a checkout stand are grainy but seem to show Mejia wearing a green shirt. With a shaved head and distinctive profile and cranial features, the resemblance is evident. Mejia, referred to in the transcript as having “sort of a short haircut, ” had evidently let his hair grow out by the time of trial, but the jury had images of him with a shaved head. Beyond the videos themselves were three still shots from those videos, a DMV database photograph of August 7, 2008, and three parole photos, two in profile.
Video footage from 4:34 p.m. shows what looks like Mejia, in a green shirt, placing an ID on the counter for a transaction, and going over to Folger’s chair and taking something from her seat. Sychronized store records also show that the transaction was a return of two drill pumps, for store credit, at 4:32 p.m. Store procedure required either an ID or original receipt for that transaction, and the records show that Mejia’s driver’s license number was recorded, also indicating there was no receipt. Fourteen minutes later (4:46 p.m.), at a different register, is a transaction for the purchase of a power pull (or slide hammer), in which that same credit, plus credits from two July 7 returns at other Home Depot stores (each also for drill pumps and without original receipts, but with a different driver’s license number), is applied to the purchase. DMV records showed that the different driver’s license was for Bridget Murphy, the girlfriend of Mejia’s younger brother, Mauricio, who lived with Murphy in Santa Rosa.
McFadden ultimately arranged with Mejia’s parole agent, Gordon Hodgson, to arrest Mejia at the parole agent’s Santa Rosa office. Hodgson set up a meeting there with Mejia on October 6, 2008. Mejia arrived by bicycle and was arrested and interviewed that day by McFadden. His belongings were collected then and ultimately returned by Hodgson to the home of Mauricio and Murphy. He delivered the bicycle and a manila envelope of Mejia’s other belongings to Murphy, who answered the door. McFadden testified that Mejia had a driver’s license, not an ID card, with him at the arrest; Hodgson could not recall what kind of identification Mejia had. Hodgson testified, after watching the Home Depot surveillance videos, that he was 100 percent certain that the man in the green shirt was Mejia.
DMV records also showed that Mejia applied for an ID card on August 18, 2008.
Over defense objection earlier resolved by an in limine ruling, the People were allowed to introduce three auto-theft-related priors by Mejia, and those ultimately went to the jury on issues of intent, knowledge and, since Mejia testified, credibility. A 2003 auto theft (Health & Saf. Code, § 10851) concerned a report of a green Mercury Villager mini van outside 30 Clay Court, Novato, that a caller reported had been there for a couple of months, with someone with a shaved head living inside. An officer having information that the license plate had been reported stolen found one male in the front seat and Mejia on a back seat, with a “shaved key” (or “jiggle key”) in his pants pocket and another in a backpack that held his ID. The VIN, at first covered over by a sticker, proved to correspond with a reported theft of the mini van, separate from the theft of the plate. The steering column was open at the ignition. The car had been taken one night from Marin Auto, in San Rafael, when someone broke into the office and took the car’s keys.
Modified CALCRIM No. 375 instructed in part: “The People presented evidence of other behavior by the defendant that was not charged in this case that the defendant stole and/or possessed stolen vehicles. [¶]...[¶]
A 2004 conviction for possessing a stolen vessel (§ 496d, subd. (a)) concerned a white Volvo sedan. The owner left it over the weekend for servicing at a San Francisco shop, where it was stolen. Then Mike Hagmaier, intent on surfing early one morning, pulled into a lot at Montara State Beach and eyed the Volvo three or four spaces down from him, the only other car in the lot. Four or five people sat inside. Given recent crime there, the car’s presence so early in the morning, and that the car had “brand new” plates, Hagmaier drove on to a beach in Pacifica and notified police from there. A responding deputy saw the Volvo, bearing “paper plates” and still the only car in the lot, with three or four men, Mejia included, sitting or standing in a nearby grove, on a bluff above the beach. The men said the car was theirs but, when asked who the driver was, said a friend was surfing at the beach, and that they had to get him. The deputy let them walk off together down to the beach, before discovering that another man was asleep in the back seat of the Volvo, that there was no surfing equipment in the car, and that the VIN showed it to be stolen. Once backup arrived, the deputy woke the sleeping man and, finding that he spoke little English, detained him as he watched the other men from the bluff. The men walked down the beach toward another parking lot, apparently not looking for anyone, and were arrested as they tried to leave by the other lot. At an in-field showup, Hagmaier picked out Mejia as the Volvo’s driver. When the owner got his car back in filthy condition and had it cleaned, a worker found Mejia’s California ID somewhere under the seats.
The third conviction, from 2006, yielded the prison term from which Mejia was paroled before the latest offenses. San Francisco Police stopped him one January evening for erratically driving a gold Saturn. Mejia said the car was owned by a man named Bobby. He gave a Novato address and cross street for “Bobby, ” but an officer who was born and raised in Novato realized the address was bogus. Mejia was detained while Novato police checked a Novato address for the vehicle’s registered owner, Richard Platte. Mejia was arrested when Novato officers reported the home burglarized and ransacked, no car in the garage, and Platte away on a Las Vegas trip. Platte later identified bikes, stereo equipment and other goods found in the Saturn as taken from his home.
Defense Case
Mejia’s brother, Mauricio, testified that he lived with his girlfriend, Bridget Murphy, and their children, in a Rincon Valley house in Santa Rosa. After the June 2008 release from prison, Mejia lived in Marin County but visited him every couple of weeks, including the Friday through Sunday or Monday the weekend of the thefts. Mauricio had used his Ford Explorer to pick up him and his bicycle from a Santa Rosa bus station that Friday. He recalled the visit because Monday, July 21st, was Mejia’s birthday, and he prepared a special lamb barbecue on Saturday, the 19th, for the occasion.
Conceding that he loved and tried to help his brother, and had a recent felony conviction for commercial burglary (shoplifting at Target), Mauricio said he would not lie. He said Mejia was with him the whole time that weekend and went nowhere on his own. Mauricio was not certain he did not go to the Windsor Home Depot that weekend, but did not think so. He often went to Home Depot stores, had returned defective drill pumps and tools, and had been to the Windsor store, but he normally went to two locations nearer his home. He did not recognize himself, his brother, or anyone on the “blurry” security videos.
After Mejia’s arrest, Mauricio said, Mejia’s parole agent came by the house and dropped off the bike and a manila envelope of personal effects from his brother. Included was a California ID card, but no driver’s license.
Mejia testified similarly. He was homeless after his prison release in early June 2008, stayed mostly in Marin County, worked sometimes, had only his mountain bike for transportation, and would take the bike with him by bus to Santa Rosa, now and then, to stay a weekend with Mauricio and family. He was there around his birthday, recalled the barbecue, went nowhere without his brother except to walk the family dogs or bike to a local Safeway, and had never in his life been to the Windsor Home Depot.
Mejia denied taking the keys or car. As for whether he was the person in the green shirt on the store video, he said: “I can’t see his face. There’s not a clear facial shot. There’s a lot of Hispanics that look like me. There’s a lot of people with shaved heads. There’s a lot of people who are skinny. There’s a lot of undocumented people who live here in the area that could have used my license. I really don’t recognize that individual. He looks Hispanic. They’re all facial—they’re all rear shots. There’s not a clear facial shot. I don’t see nothing but a shadow. It could be any Mexican. It could be any Nicaraguan. It could be any Peruvian, Italian.”
To explain how someone else could have used his license, Mejia said he got a new license shortly after his prison release but lost it sometime in late June or early July, when he left his backpack, the license inside, on a bus. Money being tight, he did not replace the license (costing $27) but, in August, got a California ID card (costing $14), that came in the mail by September. It was that ID card, not a license, he insisted, that he had with him when arrested in October on the visit to his parole agent.
Mejia said the arrest surprised and scared him. Wanting to “cooperate” with McFadden, and afraid that someone had used his license to commit a crime, he lied to McFadden and said things that “probably didn’t make sense.” He lied about a friend, Jose Martinez. “I made up a story that myfirst I said that my license got lost, and then I made up a story about I borrowed [meaning lent] it to somebody, along those lines.” He did give McFadden his trial account of losing the license on a bus. He went without his license both due to of the cost of replacing it and because he had a “DMV printout” that was “good enough for the time being.” He conceded, however, that there was no such printout among the items in the envelope of belongings returned after his arrest.
As for his prior convictions, Mejia conceded the 2004 Volvo theft but denied being the driver. Despite having pled guilty to all three offenses, he also disputed the 2003 and 2006 offenses, saying he was picked up by friends or, in the case of the Saturn, got the car from a friend.
Rebuttal
McFadden testified in rebuttal that he was positive Mejia had a driver’s license when arrested, not an ID card. The license, a hat, and sunglasses were among belongings from Mejia that had been placed in the envelope for safekeeping, and were now missing from the envelope in evidence.
A digital audio recording of McFadden’s interview with Mejia was played for the jury, with transcripts furnished. It contained extended reference to a license, starting with McFadden interjecting, after Mejia’s effects had been collected by the parole agent: “I noticed you had a driver’s license there. [¶] [Mejia] Yeah, I got like, I gotta valid license, always had one. [¶] [McFadden] How long ago was that license issued to you, how long ago did you actually get that, that card? [¶] [Mejia] Aaaahm, I’m not sure if it was June or July, I know I applied for them as soon as I got out of prison, yeah, so, whatever. [¶] [McFadden] Since you’ve had that driver’s license, have you ever lost it or given it to anybody? [¶] [Mejia] Ahhh, I think I ah lost and I got a, an I got a re, ah, replacement, yeah. [¶] [McFadden] When was that? [¶] [Mejia] Ahm, end of June, beginning of July, yeah [unintelligible] [¶] [McFadden] I guess you, you got your new car, card in the beginning of July? [¶] [Mejia] I believe so, yeah....” The beginning of July, of course, would have been before the July 20 offenses at the Windsor Home Depot. McFadden explained that he had not mentioned the license in his summary report because he did not know there was one missing and because it was already documented in the recorded interview.
Mejia also went on in the interview to say, when asked about lending his driver’s license to anyone to make a return at Home Depot: “I’m not sure if it was Windsor but, you know, I remember borrowing [sic] my license to my friend so he could return some stuff [unintelligible]. [¶] [McFadden] Who was that? [¶] [Mejia] Ah this Mexican friend of mine. [¶] [McFadden] Does he look like you? [¶] [Mejia] No.” Mejia said the friend was Jose Martinez and lived “here in Santa Rosa.“
Discussion
I. Prior Crimes Evidence
“Generally, the prosecution may not use a defendant’s prior criminal act as evidence of a disposition to commit a charged criminal act. (Evid. Code, § 1101, subd. (a).) But evidence is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge...) other than his or her disposition to commit such an act.’ (Evid. Code, § 1101, subd. (b).)
“ ‘To be admissible to show intent, “the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.” ’ [Citations.]....
“Because evidence of other crimes may be highly inflammatory, the admission of such evidence ‘ “ ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ ” ’ [Citations.] Under Evidence Code section 352, the probative value of the defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] ‘We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 602.)
Mejia claims abuse of discretion in admitting the three auto-theft-related priors to show intent and knowledge. He does not argue that they were too dissimilar or remote to be probative of his intent to deprive Folger of her keys or car, or knowledge that the keys or car were stolen. He urges, rather, that they were not material, since his defense was alibi, and the priors did not have the signature degree of similarity needed to make them admissible to show identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) The main dispute having been identity, he decries use of the term “intent” as a “euphemism” for propensity and argues that jurors must have used it that way, particularly since the prosecutor, in his view, made a “sleight of hand argument” to the jury that blurred proper and improper uses. His view that the priors lacked signature similarity is uncontested but beside the point, given that the jury was never instructed that it could use the priors to show identity. (Fn. 2, ante.) His other arguments also fail to show abuse of discretion.
First, the alibi defense did not render intent and knowledge immaterial. Defense counsel similarly argued below on the in limine motion: “A person that takes car keys that don’t belong to them, I don‘t think intent will be an issue in this trial. It is clearly coming in for his disposition to commit[] those acts.” But the prosecutor noted that if jurors were convinced that the video showed Mejia taking the keys from Folger’s chair, there remained questions about his intent or participation in taking the car, for which there was no video. The trial court evidently agreed, and no abuse of discretion appears in that regard.
A “ ‘plea [of not guilty] does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence [of uncharged misconduct], unless the defendant has taken some action to narrow the prosecutor’s burden of proof.’ [Citation.]... ‘[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.’ ” (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) Intent and knowledge for taking or possessing the car were placed at issue, and defense counsel did nothing to narrow the prosecutor’s burden of proof. His statement, “I don’t think intent will be an issue in this trial” (italics added), was equivocal and unaccompanied by any action to stipulate, or otherwise limit, the intent and knowledge elements. Without such action, the defense was free to argue that, even if jurors found beyond a reasonable doubt that Mejia took the keys with larcenous intent, it was pure surmise what his intent was regarding the car, and indeed, whether he was involved at all in its taking, since only the fingerprints of the hotel manager were discovered on it. Thus intent and knowledge, including those needed to aid and abet, remained material issues. (Cf. People v. Lindberg (2008) 45 Cal.4th 1, 23.)
Mejia posits that uncharged crimes may never be used to show intent unless the alleged acts are conceded or assumed, by which he seems to mean conceded or assumed by the defense. His notion comes from this footnote in Ewoldt that distinguishes proof of intent from proof of common design or plan: “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendant’s uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it. [¶] Evidence of common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, ‘[i]n proving design, the act is still undetermined....’ [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, quoting both times from 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) 300, p. 238.)
Second, Mejia does not dispute the priors’ high probative value on intent and knowledge. “ ‘ “[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....” [Citations.]....” ’ ” (People v. Kelly (2007) 42 Cal.4th 763, 783.) Given that high value, we see no abuse of discretion in the court’s implicit decision that probative value was not substantially outweighed by a risk of undue prejudice. (Evid. Code, § 352.) None of the incidents was more inflammatory than the charged offenses (Ewoldt, supra, 7 Cal.4th at p. 405), and since all three were established by plea-based convictions, there was little risk of confusing the issues, i.e., having the jury decide whether the offenses occurred. (Ibid.)
Mejia muddied the issues by factually disputing the priors (despite his guilty pleas), but this was his own doing. Further: “Evidence is not ‘unduly prejudicial’ under the Evidence Code merely because it strongly implicates a defendant and casts him or her in a bad light, or merely because the defendant contests that evidence and points to allegedly contrary evidence. Instead, undue prejudice is that which ‘uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 632, fn. omitted.)
Third, we cannot conclude that jurors failed to follow the limiting instructions clearly prohibiting propensity use of the priors (fn. 2, ante). “The presumption is that limiting instructions are followed by the jury. [Citation.] That presumption is not rebutted here.” (People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) In fact, it is reinforced by the jury having acquitted Mejia of the count I auto theft, obviously not carried away by improper inferences of propensity.
Finally, Mejia’s complaint that the prosecutor made “sleight of hand” use of the priors in jury argument does not detract from the correctness of the ruling. “[W]hether evidence was erroneously admitted does not depend on counsel’s later argument to the jury.” (People v. Harrison (2005) 35 Cal.4th 208, 230, fn. omitted.) Mejia also does not raise any separate issue of prosecutorial misconduct.
No abuse of discretion is shown.
II. Exclusion of Murphy’s Testimony
Going into the trial, the only disclosed defense witness was Mejia’s brother, Mauricio, and a standard exclusion order required all witnesses, until their testimony, to remain outside the courtroom, except for a party or designated witness. Such an order is issued, obviously, “so that such witness cannot hear the testimony of other witnesses.” (Evid. Code, § 777, subd. (a).) Testimony in the 2009 trial began on April 10, with two prosecution witnesses called, and resumed on April 13, with seven more called, including Detective McFadden. One of the things McFadden related was having gotten a driver’s license from Mejia, not an ID card, upon arresting him at the probation agent’s office.
On the morning of the third day of testimony, the court heard that defense counsel had proposed, for the first time that morning, calling Mauricio’s girlfriend, Murphy, to testify that there was an ID card, not a driver’s license, in the envelope of belongings turned over to her by the parole agent. Prosecutor Michael Li objected based on late discovery and a violation of the witness-exclusion order, since Murphy had watched the trial throughout McFadden’s testimony. Indeed, Murphy was again present and had to be asked to leave the courtroom while court and counsel discussed the matter.
Deputy Public Defender Amy Chapman explained that she had not anticipated calling Murphy until she heard through a defense investigator that Murphy, after hearing McFadden testify about the driver’s license, went home, opened the envelope, and found that there was an ID card inside, not a driver’s license. Chapman said that no discovery had indicated Mejia having a driver’s license when arrested. (She was mistaken on that point, for the interview between Mejia and McFadden at the arrest contained extended discussion of Mejia’s driver’s license.) Further colloquy explored whether Mauricio, who had not violated the exclusion order and had been there when Murphy opened the envelope, could give the testimony, whether the parole agent could be examined on the matter, and whether Murphy, if she testified, could be impeached about having been in the courtroom. Asked by the court why Mauricio could not give the testimony, Chapman cited “almost a chain of custody issue” in that, while Mauricio had been there when Murphy opened the envelope, he might not have been there when Murphy first got it from the parole agent. When the court asked Li if he would “be objecting to chain of custody, ” Li said, “I will stipulate to chain of custody.” The court then denied permission to call Murphy.
The parties offer much debate on whether the court prejudicially abused its discretion. Mejia argues that there was insufficient fault by the defense to warrant excluding Murphy, that the matter could have been handled instead with “a carefully crafted jury instruction” (not proposed), that the parties never did enter the stipulation on chain of custody, and that the prosecutor in fact argued a “chain of custody” problem to the jury. The People argue that the defense was not without fault, that any error was harmless, and that Li’s argument about chain of custody went to the whole seven months Mauricio and Murphy had the envelope, not to any problem of Mauricio not being there when the envelope was received.
Because we conclude that any error was harmless, we do not decide whether error occurred. This was certainly not federal constitutional error requiring harmlessness beyond a reasonable doubt. In the end, Mauricio testified, without any chain-of-custody objection, that there was no driver’s license in the envelope, and the People are correct that the prosecutor‘s later “chain of custody” argument to the jury went, not to Mauricio being absent when Murphy received the envelope from the parole agent, but to the much bigger problem that the couple had the envelope in their possession for seven months, including after McFadden’s testimony, and could have added or removed items. Mejia, too, testified at length why he was sure he had no driver’s license at the time of his arrest. Thus Murphy’s proffered testimony was duplicative, and its exclusion did not work any denial of Mejia’s right to present a defense. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The defense also cross-examined the parole agent, who proved unable to recall whether a driver’s license or an ID card was in the envelope he delivered to Murphy.
We also cannot say that a more favorable result is reasonably probable had the testimony been given. (People v. Watson (1956) 46 Cal.3d 818, 836.) Mejia claims that Murphy would have been more credible than Mauricio, who was an apparent accomplice or co-perpetrator in the charged offenses, and had an impeaching prior burglary. Because Murphy was never disclosed as a potential witness or allowed to testify, however, we do not know that her record was any cleaner than Mauricio’s. The use of her store credits in the Home Depot transactions that day hardly freed her of suspicion, and defense counsel said at one point in the hearing: “The court may be familiar with her because she has had another ongoing case here in this department. You may recognize her from her own case....” Also, as Mejia’s friend, the longtime partner of his brother, and the mother of his brother’s child, she was not a disinterested witness.
Next, extended discussion of Mejia’s license in the interview with McFadden showed that Mejia did have one with him upon his arrest, and the DMV printout Mejia said he was using in lieu of a license at the time was not among the items returned by the parole agent. As the prosecutor argued to the jury: “The reason why he didn’t have a DMV printout is because he didn’t need one. He had a driver’s license.” Mejia had also told McFadden that he replaced a lost license at “the beginning of July, ” which was before the Home Depot offenses.
Finally, the absence or presence of a driver’s license at Mejia’s arrest in October 2008, months after the July offenses, was not dispositive of his guilt. His license had been used in the store transactions within moments of the July 20 offenses, and someone looking very much like him was caught on surveillance videos using what looked to be a license or similar ID. His alibi, shaky from the start, depended on an amazing confluence of events where his driver’s license, lost weeks earlier on a bus, was misappropriated and used by some miscreant at the same store and time where his brother’s girlfriend’s store credits were being used, and while Mejia happened to be staying the weekend with them.
Any error in disallowing Murphy’s testimony was harmless.
III. Parole Agent Identification Testimony
In testimony, parole agent Hodgson was shown the video and asked about the man in the green shirt. Hodgson said he was “[a] hundred percent” certain it was Mejia. Defense counsel Chapman raised no objection below, and Mejia now claims that failure to object to the agent’s opinion, based on insufficient foundation of personal knowledge, amounted to ineffective assistance of counsel, given graininess and lack of a clear facial shot.
We reject the claim. To prevail, Mejia “ ‘must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible; and counsel’s decision making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....” [Citation.]....’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) Chapman was not asked on the record why she did not object, and we see ample tactical reasons why she reasonably might not want to do so.
First, the prosecutor did lay some foundation before showing the video and asking Hodgson about it. Hodgson said he had supervised Mejia on parole from his June 2008 release through his October 2008 arrest, saw him at least twice a month, 10 to 15 minutes each time, and met with him at least 8 to 10 times. Asked if he was able during those times “to make observations of Mr. Mejia’s mannerisms and movements, ” he replied, “Yes.” Then asked further, “The way he did certain things?” Hodgson said, “Yeah, his mannerisms I guess you would say, the way he would walk, hand movements.”
Defense counsel had every reason to regard further inquiry of Hodgson as a land mine. She could reason that the jurors would be watching the video themselves, and with its graininess, likely be less sure that it was Mejia. Asking Hodgson further questions could have revealed peculiar mannerisms of walking, hand gestures, and the like, that Hodgson felt were dispositive. Rather than run the risk that jurors would buy into his explanations when watching the video for themselves, counsel could reasonably opt to remain silent. Deficient performance is not shown.
IV. Remand to Correct Unauthorized Sentence
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If... a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.]” (Italics added.) (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
The court concluded that section 654 precluded double punishment for the count II stolen car possession (§ 496d, subd. (a)) and the count III stolen keys possession (§ 496, subd. (a)). It imposed sentence for count II and stayed count III but, as the People note, neglected to first impose a sentence for the stayed count. This resulted in an unauthorized sentence that can and must be set aside whenever brought to a court’s attention (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327), and may be raised here by the People, for the first time on the defendant’s appeal (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256).
Because count III carries a term range of 16 months or two or three years (§§ 496, subd. (a), 18), the case must be remanded for the trial court to exercise its discretion to impose one of those terms, and then to stay its execution. Mejia does not mention or dispute this in his reply brief. We shall order the correction.
Disposition
The sentence is reversed with respect to the trial court’s failure to impose an appropriate sentence on count III before effecting a stay under section 654, and the matter is remanded with directions to conduct further sentencing proceedings consistent with this opinion. In all other respects the judgment is affirmed. The court shall direct that an amended abstract of judgment (§ 1213.5) be prepared to reflect the corrected judgment, and that the document be forwarded to the appropriate authority.
We concur: Haerle, J., Lambden, J.
“If you decide that the defendant committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
“The defendant acted with the intent to take Lill Ann Folger’s vehicle without her consent in this case; or,
“The defendant knew he was in possession of stolen property, when he allegedly acted in this case.
“In evaluating the evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses.
“Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant’s credibility.
“Do not concluded from this evidence that the defendant has a bad character or is disposed to commit crime.
“If you conclude that the defendant committed the acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of auto theft, possession of a stolen vehicle, or possession of stolen keys. The People must still prove every charge beyond a reasonable doubt.”
CALCRIM No.226 further instructed that jurors could consider, as to witness credibility, “Has the witness been convicted of a felony?”
We agree with Mejia that the word “conceded, ” in that context, connotes a defense concession, but he assumes too much about the word “assumed.” The footnote discusses “subtle but significant” distinctions between proof of intent, common design or plan, and, further on, identity. (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) It does not purport to address when intent remains material in the face of an alibi defense. “Assumed” would be an odd word to describe a defense posture, for it would imply that the defense could simply choose not to contest the alleged act. That would be contrary to the teaching, elsewhere in Ewoldt that, in order to defeat materiality, the defense must take some action to narrow the prosecutor’s burden of proof, and cannot succeed by tactically deciding not to contest an essential element of the offense. (Id., at p. 400, fn. 4.)
Mejia cites two cases that, without analysis, do seem to take the Ewoldt phrase conceded or assumed as a necessary defense posture for admission (People v. King (2010) 183 Cal.App.4th 1281, 1301; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926), but we do not. We take the phrase to stress, in a conceptual discussion, what is not being proved by intent evidence. Stare decisis compels us to follow the language elsewhere in Ewoldt that actually addresses materiality (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and we have done so in the text above.