Opinion
D070882
10-11-2017
THE PEOPLE, Plaintiff and Respondent, v. STOJAN CHARLES MITICH et al., Defendants and Appellants.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Stojan Charles Mitich. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Robert Lewis Stevenson. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD262084) APPEALS from judgments of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed in part, reversed in part, and remanded with directions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Stojan Charles Mitich. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Robert Lewis Stevenson. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Robert Lewis Stevenson and Stojan Charles Mitich were part of a conspiracy to deposit a fraudulent check into Mitich's bank account and then withdraw most of that money within a few days. Stevenson appeals a judgment following jury verdicts convicting him of conspiracy to commit grand theft (count 1, Pen. Code, § 182, subd. (a)), unlawful use of personal identifying information of another (count 2, § 530.5, subd. (a)), second degree burglary (counts 3, 5-13, § 459), and grand theft of personal property valued in excess of $950 (count 4, § 487, subd. (a)). In his appeal, Stevenson contends: (1) there is insufficient evidence to support his convictions on counts 3, 4, and 5; (2) his sentences on either count 1 or counts 9, 12, and 13 must be stayed pursuant to section 654; (3) counts 3 through 13 must be consolidated into one offense pursuant to the Bailey doctrine; (4) several of the probation conditions imposed by the trial court are overbroad and should be stricken; and (5) the court erred by ordering him to make victim restitution payments through the County of San Diego (County) subject to its 15 percent collection fee.
All statutory references are to the Penal Code unless otherwise specified.
People v. Bailey (1961) 55 Cal.2d 514 (Bailey).
Mitich appeals a judgment following jury verdicts convicting him of conspiracy to commit grand theft (count 1, § 182, subd. (a)) and second degree burglary (counts 9-13, § 459). In his appeal, Mitich contends: (1) the court erred by excluding evidence of his settlement agreement with the bank; (2) there is insufficient evidence to support his convictions on counts 1 and 9 through 13; (3) execution of his sentence on either count 1 or counts 9, 12, and 13 must be stayed pursuant to section 654; (4) counts 9 through 13 must be consolidated into one offense pursuant to the Bailey doctrine; (5) several of the probation conditions imposed by the court are overbroad and should be stricken; and (6) the court erred by ordering him to make victim restitution payments through County subject to its 15 percent collection fee.
Based on our reasoning below, we affirm the judgments in part, reverse them in part, and remand the matters with directions for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 2 and 3. In July 2014, Mitich had an account with California Bank and Trust (Bank) in the name of his business, SCM Companies, Inc. (SCM). At about 6:00 p.m. on Friday, July 18, Mitich entered Bank's Hillcrest branch shortly before it closed. He told Juan Gonzalez, the branch's customer service manager, that he was waiting for someone to bring him something that he had to deposit into his account. At about 6:02 p.m., Stevenson entered the branch and handed Mitich an envelope. Mitich ripped open the envelope, removed a check, and handed the check to the teller for deposit into his account. The check, No. 57144, purportedly was in the amount of $75,143.41, drawn on the account of the Ability Center, and made payable to SCM. The check was not legitimate and had been made by cutting and pasting together portions of two checks the Ability Center had written to its vendors in the amounts of $43.41 and $163.25. The fraudulent check appeared to be legitimate to an untrained eye. The day before Mitich's deposit of that check, SCM's account balance was $104.66. Because both the Ability Center and SCM had accounts with Bank, Bank processed the check immediately. When Mitich asked Gonzalez when the funds would be available, he replied the funds would be available the next day (i.e., Saturday, July 19).
The first check was made payable to Corporate Solutions and the second check was made payable to Grainger.
Count 4. On Saturday, July 19, Mitich drove to Bank's Escondido branch and, using its drive-through window, placed a $9,900 check drawn on his SCM account into the branch's tube system and asked the teller to cash it. In the check's memo section, Mitich had written, "For loan paid back." Because of the check's amount, the teller first obtained her supervisor's approval and then cashed the check, placing the cash into a tube that transported it to Mitich, who was alone in his car.
Count 5. At about 1:00 p.m. on Saturday, July 19, Mitich entered Bank's La Mesa branch and, using funds in SCM's account, purchased three cashier's checks. The cashier's checks, each in the amount of $8,500, were made payable to Tina Stevenson (Stevenson's wife), Jennifer Carter, and Vickie Aponte.
Counts 6 and 7. At about 12:30 p.m. on Monday, July 21, Carter and Aponte entered Bank's Rancho Cucamonga branch. Carter gave the teller her $8,500 cashier's check and received $8,500 in cash. Aponte gave the teller her $8,500 cashier's check and received $8,500 in cash.
Count 8. On July 21, Mitich entered a Wells Fargo Bank branch and deposited the $8,500 cashier's check in Tina Stevenson's name into her account with the bank.
Count 9. At about 11:00 a.m. on July 21, Mitich entered Bank's Escondido branch and requested and received a cashier's check for $11,000 payable to Aponte and a cashier's check for $10,000 payable to Carter. He then told the teller he wanted $9,000 in cash. The teller informed him that because Saturday (July 19) and Monday (July 21) were considered the same business day and he would be receiving a total of more than $10,000 in cash in that business day, he would be required to fill out a currency transaction report that Bank would file with the IRS. Mitich then made a telephone call. When he got off the phone, he appeared nervous and was sweaty and fidgeting. Instead of cash, Mitich then requested and received cashier's checks for $9,900 and $9,320 payable to himself.
Count 10. On July 21, Carter and Aponte entered Bank's Mission Gorge branch. Carter cashed the $10,000 cashier's check in her name and received $10,000 in cash.
Count 11. On July 21, Carter and Aponte entered Bank's Kearny Mesa branch. Aponte cashed the $11,000 cashier's check in her name and received $11,000 in cash.
Count 12. On July 22, Mitich entered Bank's San Marcos branch and attempted to cash the $9,900 cashier's check in his name. However, because the branch did not have sufficient cash, he was given $3,000 in cash and a cashier's check for $6,900 for the remainder.
Count 13. On July 22, Mitich entered Bank's Emerald Plaza branch and cashed the $6,900 cashier's check in his name and received $6,900 in cash.
On July 28, Mitich went to Bank's Hillcrest branch at the request of Gonzalez, its customer service manager. Gonzalez told him the Ability Center check was bad and asked him what happened to the money. Mitich explained the check was for a business transaction. At Gonzalez's request, Mitich wrote a handwritten explanation, stating: "Got the check for a business loan. [¶] . . . [¶] Went through someone to get the loan. [¶] . . . [¶] Came right after 6:00 p.m., Friday, 7/18/14. [¶] . . . [¶] [Illegible] deposit." He continued: "I was told because it was a bank, the same bank, funds would be available the next day. [¶] . . . [¶] Went to Escondido branch. I withdrew funds to pay debt off. [¶] . . . [¶] Money that had to pay off, Chris told me to pay these people." Mitich told Gonzalez he purchased all of the cashier's checks because he had to pay people off.
On July 30, Denette Stewart, Bank's Escondido branch manager, spoke with Mitich by telephone. She asked him where he got the Ability Center check. Mitich replied that a friend, Chris Williams, whom he was helping out, gave the check to him. He explained he met two men, Williams's friends, in Bank's parking lot and they handed the check to him. Mitich stated that after depositing the check, he withdrew the money and gave it to Williams. When Stewart stated his story did not make sense, Mitich replied he was trying to help a friend he had known a long time. Mitich told her Williams was a mortgage broker in Escondido. Mitich stated he told him to write, "For loan pay back," in the memo section of the cashier's checks. When she asked for Williams's contact information, Mitich replied he did not know how to reach him. However, two days earlier, Mitich had provided Williams's telephone number to Bank's fraud investigator and it had been given to police who were investigating the matter. Mitich told Stewart he did not want any problems with Bank, which she interpreted as meaning he wanted to get the overdraft resolved. Stewart testified he did not, however, get the overdraft resolved.
On August 5, Mitich met with Stewart and handed her a Bank deposit envelope and told her that his friend, Williams, had given it to him. On the outside of the envelope, there was handwriting with instructions regarding the cashier's checks he should obtain (i.e., $8,500 and $11,000 checks payable to Aponte and $8,500 and $10,000 checks payable to Carter). Mitich did not know either woman.
During the police investigation of the matter, there was an analysis of telephone records for Mitich, Williams, Stevenson, and an unknown person's Verizon telephone, during the period of July 19, 2014 through July 21, 2014. There were oral or text communications between Mitich and Williams, between Williams and Stevenson, between Stevenson and the Verizon telephone, between Williams and the Verizon telephone, but not between Mitich and Stevenson or Mitich and the Verizon telephone. Using cell site mapping, a police forensic analyst determined that on the morning of July 21, 2014, the person with the Verizon telephone began traveling south from Las Vegas toward California. At that time, Mitich's and Williams's telephones were in northern Escondido. At about 9:45 a.m., Williams's telephone headed north. From 8:30 a.m. to 9:30 a.m., Stevenson's and Williams's telephones converged, suggesting a handoff occurred. The Verizon telephone showed movement from Las Vegas to San Diego, then to Riverside, then to the Rancho Cucamonga/Corona area, then back to San Diego, and then to Los Angeles.
In November 2014, San Diego Police Detective Dan Clift interviewed Mitich. Although Mitich admitted he told Bank personnel the check was for a business loan, he told Clift he had not heard of the Ability Center and the check was not for a business loan. Mitich stated he deposited the Ability Center check into his business account and withdrew the money and purchased cashier's checks as he was instructed by Williams, his friend, as a favor to him. Mitich said his friend was going through a divorce and was trying to hide some money. Williams told him he was going to give him a check and then he (Mitich) would "pay some people." Mitich stated Williams had given him the envelope with the handwritten information with amounts of cashier's checks and the names of women (none of whom he knew) and instructed Mitich to give the cashier's checks to him. When shown video from Bank's surveillance camera recorded on July 18, 2014, Mitich stated he did not know the man (Stevenson) who had handed him the envelope containing the Ability Center check. Mitich gave Clift Williams's name and telephone number. Mitich stated he did not know the check was fraudulent. He denied he was told at Bank's Escondido branch on July 21, 2014, that his withdrawal of cash would require a report and only thereafter asked for a cashier's check. He did not remember making a deposit into Tina Stevenson's account at Wells Fargo Bank. Mitich stated he gave all of the cash he received, including from one of the cashier's checks payable to him, to Williams. He returned to Bank the other uncashed cashier's check that was payable to him. Mitich admitted his business was struggling.
Also in November 2014, Clift interviewed Stevenson by telephone. Stevenson admitted he knew someone had deposited a $8,500 check into the account of Tina, his wife. The check was deposited into her account because he was holding the funds for Williams, who wanted to avoid reporting the money to the IRS. He planned to keep about $1,000 and give the rest to Williams. He withdrew $4,800 from Tina's account when he and Tina went to Las Vegas the weekend of July 19, 2014. Stevenson denied knowing Mitich, Aponte, and Carter. He denied the African-American man shown in Bank's surveillance video recorded on July 18, 2014, was him. He denied going to San Diego on July 18 to hand off a check as a favor for a friend.
In May 2015, Clift interviewed Stevenson in person after obtaining telephone records and bank records. When shown a photograph from Bank's surveillance video and told his telephone had "pinged" near Bank's Hillcrest location, Stevenson admitted he handed an envelope to someone, knowing it contained a $75,000 check, but he did not know the person he handed it to. The check was from a man named "Philly" who instructed him to give the envelope to a man he was providing with a business loan. Stevenson did not know Philly's real name or address. He understood his instructions were from Williams. Stevenson stated the check deposited into Tina's account was payment of a referral fee for connecting Mitich with Philly. When shown a photograph of Mitich, Stevenson stated he knew Mitich by the nickname "Stony." He thought the check was for $25,000 and he was to receive a five percent referral fee. He complained he was supposed to receive cash instead of a check for his referral fee.
In November 2014, Clift interviewed Williams by telephone. After being told what Mitich had told Clift, Williams denied knowing what Mitich was talking about and anything about the Ability Center check and claimed Mitich was lying. He denied knowing Mitich, Carter, Aponte, or Tina Stevenson. He subsequently told Clift Mitich had come to him for a loan. Although he could not help Mitich, he put him in touch with people who could do so and he did not speak with Mitich again. He stated he never saw the Ability Center check. He denied writing the note regarding the cashier's checks. He denied that Mitich gave him three $8,500 cashier's checks or approximately $10,000 in cash. He admitted he knew Tina Stevenson and had deposited an $8,500 cashier's check into her Wells Fargo Bank account pursuant to Mitich's instructions, but later stated he had no recollection of having done so. Williams stated his children had gone to school with Stevenson's children.
Clift found that police department records showed Mitich paid $4,000 in cash for his business permit fee in August 2014 after a check for that fee had bounced in late June or early July. That bounced check had been written on Williams's account with North Island Credit Union on behalf of Mitich.
A second amended information charged Stevenson, Mitich, and Williams with conspiracy to commit grand theft (count 1, § 182, subd. (a)), unlawful use of personal identifying information of another (count 2, § 530.5, subd. (a)), second degree burglary (counts 3, 5-13, § 459), and grand theft of personal property valued in excess of $950 (count 4, § 487, subd. (a)). At trial, the prosecution presented evidence substantially as described above. It also presented the testimony of Vickie Aponte, a personal escort who lived in Las Vegas and was in custody in Nevada for felony grand larceny in Nevada at the time of trial. After learning there were charges against her related to this case, Aponte pled guilty to conspiracy to commit grand theft (count 1) in this case in return for her truthful testimony. She testified she knew Carter and a man named Robert Boudreaux. Carter and Boudreaux have children together. On the night of July 20, 2014, Boudreaux told Aponte that the following morning she would be cashing some checks made out to her and would give him the money from the checks. He threatened her with violence if she did not comply. The next morning, Boudreaux drove her, Carter, and his two young children to San Diego. On the way, they stopped at a gas station. Another car pulled up and two African-American men in that car gave Boudreaux some checks. Boudreaux returned to his car and told Carter and Aponte: "Now we have the checks and now we will head to the banks." Carter and Aponte went into four banks, cashed cashier's checks made payable to them, and gave the cash to Boudreaux. They then drove back to Las Vegas. Aponte was unfamiliar with SCM and a man named Philly.
In Mitich's defense, he called his father, Charles Mitich, to testify. His father obtained Williams's name from his accountant for help with refinancing his house and then he (Charles) gave Williams's name to his son (Mitich). Mitich's father had never met Stevenson. In August 2014, he gave Mitich $4,000 in cash to pay his "dance license" (presumably referring to his business permit fee) because Mitich's earlier check had bounced.
In Williams's defense, Williams testified he had been a mortgage broker and assisted Mitich and his father with refinancing loans. Williams knew Stevenson, who was a childhood friend and had played sports with his brother, and knew his wife, Tina. Williams denied knowing Philly, Carter, Aponte, or Boudreaux. In the spring of 2014, Mitich approached him for an equity loan, but he did not qualify for one. Mitich told him his business was struggling and he needed any amount of money he could get. Williams spoke with Stevenson, who looked into the matter and called Williams back on July 18 and told him the funds were available. Williams called Mitich and, at Mitich's request, arranged a meeting between Stevenson and Mitich at Bank's Hillcrest branch. The following day, Stevenson called him and stated he was supposed to meet Mitich again but an emergency had arisen and asked Williams to meet with Mitich instead. Williams agreed and met with Mitich in the parking lot of Bank's Escondido branch. Mitich told Williams he could not get any cash without having problems with the IRS and handed him an envelope. Mitich wanted Williams to drive to Bank's Rancho Bernardo branch and get cashier's checks. Williams called Stevenson, who was out of town, and Stevenson told him that under the loan agreement Mitich had to pay various parties, including Aponte and Carter. Stevenson gave Williams their names and payment amounts, which he (Williams) then wrote on the back of a deposit envelope. Mitich paid Williams $700 for his part in the transaction. After Mitich left for Rancho Bernardo, Williams went home. Williams testified he never saw the Ability Center check. He testified that he did not tell Mitich to write a check to himself.
Williams's wife testified that she and Williams were never going through a divorce and Williams had no issues with the IRS. Williams and Stevenson were long-time friends. During 2014, Williams did not come home with large amounts of cash.
The jury found Stevenson and Williams guilty on all counts and found Mitich guilty on counts 1 and 9 through 13. The jury was deadlocked on counts 2 through 8 as to Mitich and the trial court declared a mistrial. Those counts against Mitich were later dismissed on the prosecution's motion. The court sentenced Stevenson to five years in prison, stayed the execution of the sentence, and placed him on formal probation for three years. The court sentenced Mitich to three years and four months in prison, stayed the execution of the sentence, and placed him on formal probation for three years. Stevenson and Mitich each timely filed a notice of appeal.
Williams is not part of this appeal.
DISCUSSION
I
EXCLUSION OF EVIDENCE OF MITICH'S SETTLEMENT AGREEMENT
Mitich contends the trial court erred by excluding evidence of his settlement agreement with Bank. In particular, he argues that evidence was relevant to show he did not have the intent to commit theft, which intent was required for his convictions on counts 1 (conspiracy to commit grand theft) and 9 through 13 (burglary). He also argues exclusion of that evidence violated his constitutional rights to due process, to present a defense, and to a fair trial.
A
During the pretrial hearing on in limine motions, Mitich orally moved for a ruling allowing him to present evidence of his civil settlement agreement with Bank. He noted that shortly after the fraudulent transactions he assisted Bank in apprehending other persons involved in the scheme. Mitich and Bank later entered into a conditional settlement agreement pursuant to which he agreed to pay Bank $50,000 and it agreed not to sue him. He represented that he had been making regular payments pursuant to that agreement. He argued that evidence was relevant to show he did not have the intent to commit theft (i.e., to permanently deprive Bank of personal property) at the time he deposited the Ability Center check, which intent was required to prove the charges against him.
The prosecutor opposed Mitich's motion, arguing that evidence was irrelevant to show his state of mind at the time of the charged offenses. He noted that the settlement agreement with Bank was not signed until May 19, 2015, which was 10 months after the fraudulent check was deposited. He also noted that Mitich did not talk to Bank about the transactions until after it had stopped payment on the last cashier's check and called to question him about the transactions.
The trial court stated evidence of the settlement agreement could be used as a factor in mitigation at sentencing, but it was not admissible as relevant to prove the charged offenses.
Following Stewart's testimony, Mitich renewed his request for admission of evidence of his settlement agreement with Bank. He noted that Stewart testified that he did not get the overdraft resolved. Mitich argued that evidence of the settlement agreement would show Stewart's testimony was not accurate. The court again ruled evidence of the settlement agreement was not admissible.
During the defense case, Mitich noted he had submitted a copy of the settlement agreement for the court's review and asked the court to take judicial notice of it. He cited case law and argued evidence of the settlement agreement showed he had made efforts to make Bank whole and was relevant to his intent. The prosecutor argued that evidence was irrelevant. Citing Evidence Code section 1152, the court ruled evidence of the settlement agreement was inadmissible.
After the close of evidence, the court stated it had read the cases that Mitich had cited, as well as other cases, and concluded those cases did not assist him. The court noted Mitich signed the settlement agreement on May 19, 2015, the criminal complaint in this case was filed on May 20, Bank's attorneys signed the agreement on May 22, and a judge approved the agreement on June 22. It also noted the alleged offenses occurred in 2014. Mitich argued evidence of the settlement agreement should be admitted to rebut Stewart's testimony and that exclusion of that evidence violated his constitutional right to due process. He also argued the evidence was relevant to show his lack of intent to commit theft at the time he made the deposit and withdrawals. The court reaffirmed its ruling excluding the evidence of the settlement agreement.
B
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) " 'Relevant evidence' " is "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A trial court has broad discretion in determining the relevance of evidence, but it lacks discretion to admit irrelevant evidence. (People v. Cowan (2010) 50 Cal.4th 401, 482.) A trial court's ruling on the admission or exclusion of evidence is generally reviewed for abuse of discretion. (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
The second amended information charged Mitich with conspiracy to commit grand theft, unlawfully using the personal identifying information of another person, burglary, and grand theft. Grand theft is the taking of money, labor, or real or personal property with a value exceeding $950. (§ 487, subd. (a).) Theft includes larceny, embezzlement, larceny by trick and device, and obtaining money or property by false pretenses. (§ 484, subd. (a); People v. Creath (1995) 31 Cal.App.4th 312, 318.) In this case, the jury was instructed only on the theory of theft by larceny. The court instructed with CALCRIM No. 1800 on theft by larceny, stating:
"The defendants are charged in Count 4 with Grand Theft."[T]he intent [to steal the property] must exist at the time of the taking and carrying away." (People v. Turner (1968) 267 Cal.App.2d 440, 443.) An intent to later restore, or make restitution for, the property is not a defense to theft by larceny. (People v. Shannon (1998) 66 Cal.App.4th 649, 656.) "The fact that a thief . . . may change his mind and return the property to escape prosecution for the crime[] does not relieve him from the consequences of the theft." (Ibid.)
"To prove that a defendant is guilty of this crime, the People must prove that:
" 1. The defendant took possession of property owned by someone else;
"2. The defendant took the property without the owner's consent;
"3. When the defendant took the property he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; [¶] AND
"4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief."
The court also instructed with CALCRIM No. 415 on conspiracy to commit grand theft, stating in part:
"To prove that a defendant is guilty of this crime, the People must prove that:
"1. A defendant intended to agree and did agree with one or more of the other defendants or unknown conspirators to commit grand theft;
"2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit the crime of grand theft[;]
"3. One of the defendants or all of them committed at least one of the following alleged overt acts to accomplish the crime of grand theft: [¶] [listing 14 specific overt acts, including Mitich's deposit of the fraudulent check][;] [¶] AND
"4. At least one of these overt acts was committed in California. [¶] . . . [¶]
"The People must prove that the members of the alleged conspiracy had an agreement and intent to commit grand theft. . . ."
The offense of burglary "requires an entry into a specified structure with the intent to commit theft or any felony." (People v. Tafoya (2007) 42 Cal.4th 147, 171.) A defendant "may be liable for burglary upon entry with the requisite intent, regardless of whether the felony or theft actually committed is different from that originally contemplated, or whether any felony or theft actually is committed." (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) The second amended information in this case alleged that Mitich committed burglaries (i.e., counts 3, 5-13) by unlawfully entering a building with the intent to commit theft.
The elements of the offense of unlawfully using the personal identifying information of another person are: (1) the defendant willfully obtained another person's personal identifying information; (2) the defendant used that information for an unlawful purpose; and (3) the defendant did so without that other person's consent. (People v. Bollaert (2016) 248 Cal.App.4th 699, 708-709; People v. Mitchell (2008) 164 Cal.App.4th 442, 455.) Intent to defraud is not an element of that offense. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 744.)
C
Contrary to Mitich's argument, evidence of his settlement agreement with Bank 10 months after the transactions in this case was not relevant to the charged crimes. As the People assert, each of the charged crimes was alleged to have been completed long before Mitich settled Bank's civil lawsuit against him. Proof of Mitich's intent to commit grand theft was required for the jury to find him guilty of conspiracy to commit grand theft (count 1), grand theft (count 4), and burglary (counts 3, 5-13). Therefore, to make a finding on a charge of theft, a jury is required to determine whether the defendant had the intent to deprive the owner of the property as of the time of the taking of the property.
Here, Mitich's settlement agreement with Bank 10 months after the transactions alleged in this case was irrelevant to the question of whether he had the intent to deprive Bank of property at the time he deposited the Ability Center check into his business account or at the times he (or his coconspirators) entered Bank's branches to deposit that check or thereafter to wrongfully obtain cash or cashier's checks from Bank. His subsequent settlement agreement with Bank showed, at most, an intent formed thereafter to restore, or make restitution for, the property that was unlawfully taken from Bank and was not relevant to, or a defense to, theft by larceny or the other theft-related offenses charged against him. (People v. Shannon, supra, 66 Cal.App.4th at p. 656.) " 'Asportation of the property with the intention to appropriate it is sufficient to constitute larceny even though the property may subsequently be returned to the owner . . . . The fact that a thief . . . may change his mind and return the property to escape prosecution for the crime[] does not relieve him from the consequences of the theft.' " (Ibid.) "[T]he bare fact of restitution or repayment is irrelevant as having no tendency in reason to prove or disprove any fact that is of consequence in the action." (People v. Wing (1973) 32 Cal.App.3d 197, 202 [upholding exclusion of evidence of defendant's restitution made eight days after forgery].) Wing noted: "While it may be argued that restitution raises an inference that the defendant did not know the instrument was a forgery, or that he in good faith believed he had authority to affix his name thereto, we believe such an inference is too tenuous to be accorded judicial recognition absent other evidence supporting the inference." (Id. at p. 202, fn. 2.)
In this case, the jury could find that "[t]he crime[s] [were] complete when the check was [deposited and/or when Mitich or his coconspirators entered Bank's premises on multiple occasions with the intent to permanently deprive Bank of its property], and repayment by defendant after his arrest was not relevant to show his lack of intent to [permanently deprive Bank of its property] when he endorsed and [deposited] the check [and/or when he and/or his coconspirators entered Bank's premises]." (People v. Parker (1970) 11 Cal.App.3d 500, 510, italics added; cf. People v. Edwards (1992) 8 Cal.App.4th 1092, 1100 [evidence of defendant's reconveyance of house after criminal charges were filed was irrelevant on question of his wrongful intent at time of taking].) Absent exceptional circumstances, evidence of a defendant's subsequent mitigation of damage he or she caused by an offense, by repayment or otherwise, in order to avoid criminal liability or for other reasons, is not probative on the issue of the defendant's intent at the time of the offense. In this case, Mitich did not testify he was acting in good faith in depositing the Ability Center check, nor was there any proffered evidence that he immediately repaid Bank. Therefore, evidence of his settlement agreement with Bank 10 months after the instant charged offenses of grand theft, burglary, and conspiracy to commit grand theft was not relevant to his intent to deprive Bank of property at the time of those charged offenses and the trial court properly excluded it.
To the extent Mitich argues evidence of his subsequent settlement agreement with Bank was relevant to count 2 (unlawfully using personal identifying information of another person), we disagree. As discussed above, that offense does not require an intent to defraud. (People v. Hagedorn, supra, 127 Cal.App.4th at p. 744.)
People v. Braver (1964) 229 Cal.App.2d 303 (Braver), People v. Dubrin (1965) 232 Cal.App.2d 674, and People v. Katzman (1968) 258 Cal.App.2d 777, cited by Mitich, are factually inapposite to this case and do not persuade us to reach a contrary conclusion. In Braver, the defendant was charged with forgery and grand theft for signing the names of his uncle and aunt on a promissory note and chattel mortgage. (Braver, supra, at p. 304.) After signing the documents, he made between eight and 12 installment payments on the note. (Id. at p. 305.) At trial, the trial court excluded evidence of the defendant's payments on the ground they were irrelevant. (Id. at pp. 305-306.) On appeal, Braver concluded that because the defendant's subsequent payments on the loan had "some evidentiary value" regarding the defendant's purported lack of intent to defraud at the time he signed the loan documents, the trial court erred by excluding that evidence. (Id. at pp. 306-308.) Because the instant case did not involve a charge of forgery or the defendant's payment of regular installments on a loan, Braver is factually inapposite to this case.
In People v. Dubrin, supra, 232 Cal.App.3d 674, the court, in dictum, stated in an embezzlement case: "[I]t is undoubtedly true that evidence of an offer of restitution is relevant to the question as to whether the [defendant] had a fraudulent intent when he appropriated the funds to his own use[.]" (Id. at p. 679.) Because that case involved the fraudulent intent required for embezzlement and that language was dictum, it is inapposite and, in any event, we nevertheless are not persuaded that the reasoning of its dictum should apply to the circumstances in this case.
In People v. Katzman, supra, 258 Cal.App.2d 777, the defendant obtained several loans by allegedly using forged stock certificates and was charged with conspiracy, grand theft, and forgery. (Id. at pp. 781-782.) Although the defendant presented evidence showing he made several payments on the loans, the trial court did not sua sponte instruct the jury that his loan payments showed his lack of intent to defraud. (Id. at p. 790.) On appeal, Katzman concluded the trial court did not err by not so instructing sua sponte, but, citing Braver, supra, 229 Cal.App.2d 303, stated such an instruction would have been proper had the defendant requested it. (Katzman, supra, at pp. 791-793.) Because the instant case did not involve a charge of forgery or the defendant's payment of installments on loans, Katzman is factually inapposite to this case.
D
Likewise, contrary to Mitich's argument, we conclude the trial court properly excluded evidence of his settlement agreement with Bank for the purpose of impeaching Stewart. On cross-examination of Stewart, Williams's counsel asked her about her testimony that Mitich told her on July 30, 2014, that he did not want any more problems. Stewart explained that Bank employees were upset because of the large overdraft and Mitich "was trying to get it resolved and didn't want any problems with [Bank]." She understood his statements to her as "saying he didn't want problems. He wanted to get the overdraft resolved." When Williams's counsel asked her whether Mitich got the overdraft resolved, Stewart replied, "No."
Following Stewart's testimony, Mitich renewed his request for admission of evidence of his settlement agreement with Bank, noting that Stewart testified that he did not get the overdraft resolved. Mitich argued that evidence of the settlement agreement would show Stewart's testimony was not accurate. The court maintained its ruling that evidence of the settlement agreement was not admissible.
Contrary to Mitich's assertion, his settlement agreement with Bank 10 months after the instant transactions does not support a reasonable inference that about one week after those transactions he attempted to resolve the overdraft caused by his deposit of the Ability Center check and subsequent withdrawals from his business account. Rather, that agreement shows, at most, that he settled a civil lawsuit filed by Bank against him and did so 10 months after the instant transactions. The trial court could reasonably conclude that evidence of the settlement agreement was collateral to, and lacked sufficient probative value on, the issues at trial, including Stewart's credibility, and reasonably exercised its discretion to exclude that evidence. (Evid. Code, § 352; People v. Contreras (2013) 58 Cal.4th 123, 152-153.)
E
Mitch also argues the trial court violated his constitutional rights to due process, to present a defense, and to a fair trial by excluding evidence of his settlement agreement with Bank. However, a trial court's proper exclusion of evidence under ordinary rules of evidence generally does not infringe on a defendant's right to present a defense or other constitutional rights. (People v. Frye (1998) 18 Cal.4th 894, 945.) A defendant does not have a constitutional right to present all evidence, whether relevant or not. (United States v. Scheffer (1998) 523 U.S. 303, 307-308.) Exclusion of "irrelevant evidence [does] not deprive [a] defendant of his right to present a defense." (People v. Thornton (2007) 41 Cal.4th 391, 445.) In any event, based on our review of the record, we conclude Mitich was allowed to present a defense. His counsel, as well as counsel for his codefendants, cross-examined the prosecution's witnesses and presented the testimony of a defense witness (i.e., Mitich's father). Accordingly, we conclude the court did not violate Mitich's right to present a defense or other constitutional rights by excluding evidence of his settlement agreement with Bank.
II
SUBSTANTIAL EVIDENCE TO SUPPORT CONVICTIONS
Mitich contends there is insufficient evidence to support his convictions on counts 1 and 9 through 13. Stevenson contends there is insufficient evidence to support his convictions on counts 3, 4, and 5.
A
When a defendant challenges the sufficiency of the evidence to support a judgment, we apply the substantial evidence standard of review. Generally, our task "is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Accordingly, on appeal "[w]e do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
The substantial evidence standard of review involves two steps. "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our 'power' begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fns. omitted.) The standard of review is the same in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) "Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
B
Mitich. Mitich asserts there is insufficient evidence to support findings he had the specific intent required for his convictions on counts 1 and 9 through 13. Count 1 alleged he conspired with other persons to commit grand theft and counts 9 through 13 alleged he committed second degree burglary with intent to commit theft. Based on the court's instructions (e.g., CALCRIM No. 1800), the only theory of theft on which the jury could consider those counts was the theory of theft by larceny. Therefore, to affirm Mitich's convictions on counts 1 and 9 through 13, there must be substantial evidence to support findings that at the time of the conspiracy (count 1) and at the times of the entries into Bank's premises (counts 9-13) Mitich had the intent to deprive Bank of property permanently or remove property from its possession for so extended a period of time that it would be deprived of a major portion of its value or enjoyment. (CALCRIM No. 1800.)
Based on our review of the record, we conclude there is substantial evidence to support findings that Mitich had the specific intent required for his convictions on counts 1 and 9 through 13. Shortly before Bank's Hillcrest branch closed on July 18, 2014, Mitich received an envelope from Stevenson, a man he did not know. Mitich opened the envelope, removed a check, and deposited into his business account the $75,143.41 check, which was ostensibly written by the Ability Center, a company he had never heard of before. When making the deposit, he asked the teller when the funds would be available and was informed they would be available the following day. In a succession of transactions over the course of the next few days, Mitich withdrew large amounts of money from his account, obtaining either cash or cashier's checks that were later cashed by their payees. Except for using Bank's Escondido branch twice, neither Mitich nor his coconspirators used the same Bank branch a second time.
Regarding count 9, Mitich entered Bank's Escondido branch and obtained a cashier's check for $11,000 payable to Aponte and a cashier's check for $10,000 payable to Carter. He did not know either woman. He then sought to withdraw $9,000 in cash from his business account, but the teller explained to him why that cash withdrawal would require him to fill out a currency transaction report that Bank would file with the IRS. After making a telephone call, Mitich, appearing nervous and sweaty, then requested and received, instead of cash, cashier's checks in the amounts of $9,900 and $9,320 payable to himself.
Regarding count 10, Carter and Aponte entered Bank's Mission Gorge branch. Carter cashed the $10,000 cashier's check that Mitich obtained in her name and she received $10,000 in cash.
Regarding count 11, Carter and Aponte entered Bank's Kearny Mesa branch. Aponte cashed the $11,000 cashier's check that Mitich obtained in her name and she received $11,000 in cash.
Regarding count 12, Mitich entered Bank's San Marcos branch and attempted to cash the $9,900 cashier's check in his name. However, because the branch did not have sufficient cash, he was given $3,000 in cash and a cashier's check for $6,900 for the remainder.
Regarding count 13, Mitich entered Bank's Emerald Plaza branch and cashed the $6,900 cashier's check in his name and received $6,900 in cash.
Mitich wrote, "[f]or loan pay back," in the memo section of the cashier's checks he obtained in Aponte's and Carter's names. He initially told Gonzalez the money was for a business loan, but later told him he was helping a friend (i.e., Williams). Mitich's actions and explanations for the money and transactions were inconsistent. In the written statement that Gonzalez requested, Mitich stated the funds were to pay off a debt and "Chris [Williams] told me to pay these people." He told Clift he was acting under Williams's instructions and that Williams wanted to hide money because he (Williams) was going through a divorce. However, rather than hiding the money in his account, Mitich quickly withdrew most of it in a series of transactions, obtaining cashier's checks in the names of women he did not know and cash and cashier's checks for himself. Mitich denied to Clift that he had a discussion with the teller at Bank's Escondido branch regarding the currency transaction report. However, that teller testified at trial about her explanation to him of the requirement for that report, his subsequent telephone call, and then his nervous request for cashier's checks payable to himself rather than cash.
Based on the above evidence, there is substantial evidence to support findings that Mitich, or members of a conspiracy with whom he conspired, had the intent to permanently deprive Bank of property at the time he, or his coconspirators (e.g., Aponte and Carter), entered Bank branches to obtain cash or cashier's checks or to cash those cashier's checks. The jury could reasonably infer from the circumstances of the above transactions and other evidence that Mitich conspired with other persons to commit grand theft (count 1) and committed, either directly or through his coconspirators, second degree burglaries on July 21 and 22, 2014 (counts 9-13). Contrary to Mitich's apparent assertion, the fact the jury could not reach a verdict on counts 2 through 8 does not show there is insufficient evidence to support his convictions on the other counts. To the extent he cites evidence and inferences that would have supported different verdicts on counts 1 and 9 through 13, he either misconstrues or misapplies the substantial evidence standard of review. Therefore, we conclude there is substantial evidence to support his convictions on counts 1 and 9 through 13.
C
Stevenson. Stevenson contends there is insufficient evidence to support his convictions on counts 3, 4, and 5. Count 3 charged him with burglary for the July 18, 2014 incident. At trial, the prosecution presented evidence showing Stevenson and another man entered Bank's Hillcrest branch shortly before closing and Stevenson handed Mitich an envelope, which envelope contained the fraudulent Ability Center check. Mitich then opened the envelope and deposited the check into his business account. Mitich was then informed that funds from the check would not be available until the following day.
Although Mitich did not withdraw any funds on July 18, 2014, there nevertheless is substantial evidence to support the jury's finding that Stevenson committed burglary on that date. Specifically, the jury could reasonably infer that when Stevenson entered Bank's premises on that date that he had the intent to permanently deprive it of its property (i.e., to commit theft by larceny). Contrary to his assertion, the fact that Mitich did not actually withdraw any money on that date does not preclude his conviction of burglary. Burglary does not require the actual taking of property or other theft or felony to be committed. (People v. Magallanes (2009) 173 Cal.App.4th 529, 536; People v. Moreno (1999) 74 Cal.App.4th 618, 621-622.) Rather, it requires only an intent to commit that theft or felony on the entry of the premises. (§ 459.) Based on the evidence in the record, the jury could have reasonably inferred that at the time Stevenson entered Bank's premises on July 18 he had the intent to permanently deprive it of property. Specifically, the jury could have inferred Stevenson believed that because both the Ability Center and Mitich had business accounts with Bank, that at the time he (Stevenson) entered its premises that day that Mitich would be able to immediately withdraw funds after depositing the fraudulent Ability Center check.
People v. Bartell (2009) 170 Cal.App.4th 1258, Lee v. Bank of America (1990) 218 Cal.App.3d 914, Morse v. Crocker National Bank (1983) 142 Cal.App.3d 228, People v. Curtin (1994) 22 Cal.App.4th 528 (Curtin), and the other cases cited by Stevenson regarding a bank's title to, and possession of, deposited funds until such time as they are withdrawn do not persuade us to reach a contrary conclusion. Regardless of whether or not there was, or could have been, an actual taking by Mitich on July 18, 2014, after his deposit of the fraudulent check, it is Stevenson's intent at the time of his entry onto Bank's premises that was the crucial issue in the jury's determination of whether he committed a burglary on that date. The jury could have reasonably inferred from the evidence that he had the intent to permanently deprive Bank of property on that date when he entered its premises. Accordingly, there is substantial evidence to support his conviction on count 3.
Likewise, count 5 charged Stevenson with burglary for entry of Bank's premises between July 19, 2014, and July 21, 2014. The prosecutor's theory at trial for count 5 apparently was that on July 19 Mitich entered Bank's La Mesa branch and, using funds from his business account, obtained three cashier's checks payable to Aponte, Carter, and Tina Stevenson. Stevenson argues that neither he nor Mitich could have had the intent to commit theft by larceny at the time of entry onto Bank's premises because there was an intent to obtain only cashier's checks and not cash at that time. He apparently argues that because Bank retained title to, and possession of, the funds representing those cashier's checks until such time as the checks were cashed, there was no evidence supporting an inference that either he or Mitich, his coconspirator, had an intent to commit theft by larceny at the time of entry onto Bank's La Mesa branch premises. However, cashier's checks are viewed as "good as cash." (California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053, 1072.) Stevenson does not cite any case holding that a cashier's check cannot constitute "property" within the meaning of theft. None of Stevenson's cited cases persuade us that an intent to wrongfully obtain cashier's checks at the time of Mitich's entry onto Bank's premises could not constitute an intent to commit theft within the meaning of the burglary statute. (§ 459.) Accordingly, there is substantial evidence to support Stevenson's conviction on count 5.
Count 4 charged Stevenson with grand theft on or about July 19, 2014. On that date, Mitich drove to Bank's Escondido branch and, using its drive-through window, placed a $9,900 check drawn on his SCM account into the branch's tube system and asked the teller to cash it. The teller cashed the check and placed $9,900 in cash into a tube that transported it to Mitich, who was alone in his car. Stevenson argues there is insufficient evidence to support his conviction on count 4 because Bank's teller intended to transfer to Mitich both title to, and possession of, the $9,900 in cash and therefore the element of taking the property without Bank's consent required for theft by larceny was not proved. Stevenson argues that although the evidence may have shown he committed theft by false pretenses, there was no evidence that Bank transferred only possession of, and not title to, the cash as required for theft by larceny. Because the court instructed the jury only on theft by larceny and not theft by false pretenses, he argues his conviction on count 4 must be reversed, citing Curtin, supra, 22 Cal.App.4th 528.
However, even if theft by false pretenses, and not theft by larceny, was the most appropriate charge for the alleged facts underlying count 4, we nevertheless conclude the court's failure to instruct on theft by false pretenses was harmless error in the circumstances of this case and does not require reversal of Stevenson's conviction on count 4. Based on our review of applicable case law, there appears to be a split of authority on the question of whether instruction on the wrong theory of theft is error that is reversible per se or instead subject to harmless error analysis. In People v. North (1982) 131 Cal.App.3d 112 (North), the trial court instructed on larceny by trick and device even though the more accurate description of the crime was theft by false pretenses, which adds the element of corroboration. (Id. at pp. 117-118.) North concluded that corroboration was shown in that case. (Id. at p. 118.) Citing People v. Kagan (1968) 264 Cal.App.2d 648, North stated a judgment of conviction must be affirmed if there is sufficient evidence to support a theft conviction on any theory and implicitly concluded there was sufficient evidence in its case to support a finding of all of the elements of theft by false pretenses. (North, supra, at p. 118.) Accordingly, it affirmed the defendant's conviction of theft. (Ibid.)
In Curtin, supra, 22 Cal.App.4th 528, the trial court also instructed on larceny by trick and device, but there was insufficient evidence to support a finding on that theory of theft. (Id. at pp. 531-532.) Curtin noted that although section 484 consolidated theft by trick and device and theft by false pretenses (along with other theft theories) into the single crime of theft, the elements of each of those theories of theft had not been changed. (Id. at p. 531.) Curtin stated: "While a general verdict of guilt may be sustained on evidence establishing any one of the consolidated theft offenses [citations], the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict." (Ibid.) It concluded: "Thus, in this case, if the elements of theft by trick were not proven, the conviction cannot be affirmed on the ground the evidence showed defendant's guilt of false pretenses, which has additional required substantive elements, as well as a special corroboration requirement, upon which the jury was not instructed [citations]." (Ibid.) Because there was insufficient evidence to support a finding of theft by trick and device, Curtin reversed the defendant's conviction of grand theft. (Id. at pp. 531-532.)
In People v. Counts (1995) 31 Cal.App.4th 785 (Counts), the defendant was charged with, and the trial court apparently instructed on, theft by false pretenses. (Id. at pp. 788-789.) On appeal, the defendant argued the crime he committed was theft by trick and not theft by false pretenses. (Id. at p. 788.) Although Counts rejected that argument, it concluded the defendant's conviction of theft would be affirmed even if there was insufficient evidence to support a finding of theft by false pretenses. (Id. at pp. 791-794.) Counts concluded Curtin's contrary language (as quoted above, Curtin, supra, 22 Cal.App.4th at p. 531) was dicta and instead followed North, supra, 131 Cal.App.3d 112, which held that such an instructional error was harmless. (Counts, supra, at pp. 791-793.) It stated: "To the extent we assumed arguendo there would be some technical common law pleading flaw in charging false pretenses where complete title had not in fact passed, it would appear to be, at most, harmless error here." (Id. at p. 794.)
In People v. Traster (2003) 111 Cal.App.4th 1377 (Traster), the court affirmed a theft conviction where the trial court instructed on theft by false pretenses, rather than on the more appropriate theory of theft by trick and device. (Id. at pp. 1389-1391.) Citing North, supra, 131 Cal.App.3d 112 and Counts, supra, 31 Cal.App.4th 785, Traster concluded: "[T]he error in this case is merely a technical one in which the jury was instructed on a particular theory of theft which turned out to be the wrong one. In these circumstances, the instructional error is harmless." (Traster, supra, at p. 1389, fn. omitted.) The court noted the error was particularly harmless because the instruction on theft by false pretenses increased the prosecution's burden by requiring it to prove the additional element of corroboration. (Id. at pp. 1389-1390.) Accordingly, the court modified the judgment to reflect a conviction of grand theft by trick and device. (Id. at p. 1390.)
In People v. Frederick (2006) 142 Cal.App.4th 400 (Frederick), the defendant argued the trial court erred by not instructing sua sponte on theft by trick and device and instructing only on theft by false pretenses. (Id. at p. 417.) Although Frederick rejected that argument and concluded there was sufficient evidence to support the defendant's theft conviction, citing Traster, supra, 111 Cal.App.4th 1377, it nevertheless concluded "any error is harmless beyond a reasonable doubt." (Frederick, supra, at p. 418.)
In People v. Beaver (2010) 186 Cal.App.4th 107 (Beaver), the court concluded the trial court erred by instructing on theft by larceny rather than on theft by false pretenses. (Id. at pp. 121-122.) Relying on Curtin, supra, 22 Cal.App.4th 528 and distinguishing Counts, supra, 31 Cal.App.4th 785, Beaver concluded that because "the instructions read to the jury did not include all the elements necessary for a charge of theft by false pretenses[,] . . . even if there was sufficient evidence in the record to support such a charge, the failure to instruct on those elements violated defendant's constitutional rights to have the charges decided by a jury." (Beaver, supra, at p. 125.) Beaver rejected the People's argument that such instructional error was harmless beyond a reasonable doubt. (Ibid.) The court stated: "The prosecution was not required to prove either a representation by defendant on which [the victim] relied or corroboration. Thus, even if there was evidence in the record to support these elements, the jury was never called upon to determine if they had been established beyond a reasonable doubt. Under these circumstances, we cannot say the error did not contribute to the guilty verdict." (Ibid.) Accordingly, the court reversed the defendant's conviction of grand theft. (Id. at pp. 125, 130.)
In People v. Fenderson (2010) 188 Cal.App.4th 625 (Fenderson), the court concluded the trial court properly instructed on theft by larceny and substantial evidence supported the defendant's conviction on that theory of theft. (Id. at pp. 635-637.) Fenderson concluded the defendant's theft conviction would nevertheless have been affirmed even if the more appropriate theory was theft by embezzlement. (Id. at pp. 637-642.) The court discussed North, supra, 131 Cal.App.3d 112, Counts, supra, 31 Cal.App.4th 785, Curtin, supra, 22 Cal.App.4th 528, Traster, supra, 111 Cal.App.4th 1377, and Beaver, supra, 186 Cal.App.4th 107 and adopted the position that the assumed instructional error would be harmless error in the circumstances of its case. (Fenderson, supra, at pp. 637-641.) Concluding there was substantial evidence to support a theory of theft by embezzlement, Fenderson agreed with Counts's statement that " '[i]t would obviously be very hard to explain why a theft conviction should be reversed on the grounds that the evidence showed the defendant was indeed guilty of theft, but would have been guilty of a differently denominated type of theft under a common law system which has been repealed by statute.' " (Fenderson, supra, at pp. 641-642.)
Despite the long-standing split of authority on the question of whether error in instructing on the wrong theory of theft is reversible per se or subject to harmless error analysis, the California Supreme Court has yet to decide that question. In People v. Vidana (2016) 1 Cal.5th 632, the court noted it had not decided that question, stating:
"Some Courts of Appeal have extended [People v. Nor Woods (1951) 37 Cal.2d 584] and appeared to hold that a theft conviction may be upheld under any theory of theft even if the trial court did not instruct the jury on that theory of theft. (E.g., People v. Fenderson (2010) 188 Cal.App.4th 625, 635-637 [concluding there was substantial evidence of larceny but also upholding conviction on theory of embezzlement when the trial court did not instruct the jury on embezzlement]; [North, supra,] 131 Cal.App.3d 112, 117-118 [over defendant's objection the jury was instructed on larceny although false pretenses was 'a more accurate description of the crime committed';] judgment must be affirmed if there is sufficient evidence under any theory of theft].) This court has never so held. We need not address this issue here because the jury in this case was instructed on the elements of both larceny and embezzlement." (Vidana, supra, at p. 643, fn. 9, italics added.)
In People v. Nor Woods, supra, 37 Cal.2d 584, the court stated: "[T]here was no error in failing to instruct the jury that they must agree upon the method by which the theft was committed. If [the defendant] intended that only possession of the property should pass at the time of the sale, defendant was guilty of larceny by trick or device, but if [the defendant] intended that title should pass, defendant was guilty of obtaining property by false pretenses. [Citations.] Irrespective of [the defendant's] intent, however, defendant could be found guilty of theft by one means or another, and since by the verdict the jury determined that he did fraudulently appropriate the property, it is immaterial whether or not they agreed as to the technical pigeonhole into which the theft fell." (Id. at p. 586.)
Absent guidance by the California Supreme Court, we adopt the reasoning set forth in North, supra, 131 Cal.App.3d 112, Counts, supra, 31 Cal.App.4th 785, Traster, supra, 111 Cal.App.4th 1377, Frederick, supra, 142 Cal.App.4th 400, and Fenderson, supra, 188 Cal.App.4th 625, and conclude instructional error on the appropriate theory of theft is generally subject to harmless error analysis. Although the more forgiving standard of People v. Watson (1956) 46 Cal.2d 818, 836 [error is harmless unless appellant shows it is reasonably probable he or she would have obtained a more favorable result absent the error], arguably could apply in our case to the court's instruction on theft by larceny that correctly states the law but has no application to the facts of the case and is therefore considered "factually invalid" (see e.g., People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130), we conclude, based on our review of the record, that any error by the court in instructing on theft by larceny rather than on theft by false pretenses was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; Frederick, supra, 142 Cal.App.4th at p. 418 [applying harmless beyond a reasonable doubt standard to error in not instructing on proper theory of theft].) The record includes overwhelming evidence showing that Stevenson committed theft by false pretenses when Mitich, his coconspirator, withdrew $9,900 in cash on July 19, 2014 (after depositing the fraudulent Ability Center check the day before), and Bank's teller transferred title to, and possession of, that cash to Mitich in reliance on that false pretense. (CALCRIM No. 1804.) In particular, there is strong corroborating evidence connecting Stevenson with the commission of theft by false pretenses. (People v. Fujita (1974) 43 Cal.App.3d 454, 470 [sufficient evidence corroborating defendant's commission of theft by false pretenses is required].) Stevenson was involved in conspiracy from its beginning when he handed Mitich the envelope containing the fraudulent check, supporting the inference he knew the envelope contained a fraudulent check and intended that Bank rely on it when Mitich deposited it and later withdrew $9,900 in cash. Stevenson was close friends with Williams, who apparently was at the center of the conspiracy and communicated directly with each of the members of the conspiracy. Accordingly, we conclude the court's assumed error in instructing on theft by larceny rather than on theft by false pretenses was harmless beyond a reasonable doubt and does not require reversal of Stevenson's conviction of grand theft on count 4.
III
SECTION 654 STAYS
Mitich contends, and Stevenson joins in his contention, that section 654 precluded the execution of sentences for both their conspiracy and burglary convictions and therefore their multiple punishments for those convictions should be stayed.
A
At Mitich's sentencing, the trial court imposed a term of 16 months for his count 1 conspiracy conviction and consecutive eight-month terms for each of his convictions on counts 9, 12, and 13. It stayed the sentences for his other convictions (counts 10 & 11) pursuant to section 654. The court then suspended execution of that sentence and granted him formal probation.
At Stevenson's sentencing, the court imposed a term of three years for his count 1 conspiracy conviction and consecutive eight-month terms for each of his convictions on counts 2, 3, and 8. It stayed the sentences for his other convictions pursuant to section 654. The court then suspended execution of that sentence and granted him formal probation.
B
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 prohibits punishments for single acts and for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) "If all of the offenses were incident to one objective, the defendant may be punished for any one of the offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
In the context of conspiracy cases, section 654 prohibits separate punishment for conspiracy to commit several crimes and for the underlying crimes "when the conspiracy contemplated only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation]. Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses." (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616.)
C
The People concede, and we agree, that the conspiracy alleged in count 1 had no objective other than to commit the underlying offenses alleged in counts 2 through 13. The evidence showed the objective of the count 1 conspiracy was for Mitich to deposit a fraudulent check into his business account and then withdraw that money from his account in smaller amounts either directly by withdrawing cash or indirectly by obtaining cashier's checks in his or others' names, which checks would later be cashed. Therefore, the underlying crimes of burglary, grand theft, and unlawful use of personal identifying information (counts 2-13) were committed pursuant to the same objective as the crime of conspiracy (count 1). Therefore, section 654 bars punishment for both the conspiracy (count 1) and the underlying crimes (counts 2-13). (People v. Ramirez, supra, 189 Cal.App.3d at pp. 615-616.) We conclude the trial court erred by imposing punishment on Mitich for both count 1 and counts 9, 12, and 13 and by imposing punishment on Stevenson for both count 1 and counts 2, 3, and 8. On remand, the court shall resentence them and impose punishment for either count 1 or for the other counts on which they were convicted to the extent it finds those other offenses were committed pursuant to one intent and objective. (Id. at p. 617; People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Centers (1999) 73 Cal.App.4th 84, 98.)
IV
CONSOLIDATION OF UNDERLYING OFFENSES UNDER BAILEY DOCTRINE
Mitich contends, and Stevenson joins in his contention, that all of the counts other than conspiracy of which they were convicted must be consolidated pursuant to the Bailey doctrine. They argue all of those alleged offenses were committed pursuant to a single scheme or plan with one intent and therefore constituted, at most, a single crime.
A
Section 954 sets forth a general rule that defendants may be charged with, and convicted of, multiple related offenses, stating in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission . . . under separate counts . . . . [T]he defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict . . . ." Multiple convictions can be based on a single criminal act or an indivisible or same course of criminal conduct, unless one offense is necessarily included in the other. (People v. Gonzalez (2014) 60 Cal.4th 533, 537; People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) Although section 954 allows multiple convictions for offenses arising out of the same act or course of conduct, section 654 may prohibit multiple punishments for those convictions. (People v. Sloan (2007) 42 Cal.4th 110, 116.)
Bailey, supra, 55 Cal.2d 514 created an exception to that general rule, precluding multiple charges for theft offenses committed pursuant to one general intent, one general impulse, and one plan. (Id. at pp. 518-519.) After Bailey, many courts held that multiple counts of grand theft must be aggregated into one count of grand theft when the defendant acted with a single intent or plan, even though the takings occurred by means of separate acts or transactions. (See, e.g., People v. Kronemyer (1987) 189 Cal.App.3d 314, 324, 363-364, overruled by Whitmer, supra, 59 Cal.4th at pp. 739-740; People v. Brooks (1985) 166 Cal.App.3d 24, 30-31, overruled by Whitmer, supra, at pp. 739-740; People v. Packard (1982) 131 Cal.App.3d 622, 625-627, overruled by Whitmer, supra, at pp. 739-740.) However, the Bailey doctrine does not apply to multiple burglary charges because section 459 proscribes a single act of entry with the requisite intent and separate acts of such entry support multiple charges and convictions of burglary. (People v. Washington (1996) 50 Cal.App.4th 568, 574-579 (Washington) [precluding application of Bailey doctrine to two counts of residential burglary for two entries into same residence over two hours apart].)
On July 24, 2014, the California Supreme Court issued People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), limiting the Bailey doctrine and holding that distinct acts of theft (except for theft by false pretenses) could support separate charges and convictions of theft even if committed pursuant to a single overarching scheme. (Whitmer, supra, at pp. 740-741.) However, Whitmer's holding does not apply retroactively to charges for crimes committed before its issuance, such as the instant charged offenses that were allegedly committed between July 18, 2014, and July 22, 2014. (Id. at pp. 741-742.)
B
Mitich argues that his burglary convictions on counts 9 through 13 must be combined into one single burglary conviction pursuant to the Bailey doctrine because he had only one intent and plan in committing those offenses. He argues Washington's holding should not apply to his convictions because that case involved residential, and not commercial, burglaries and his burglary convictions were "for all intents and purposes acts of theft from [Bank]." We disagree. As the People assert, the Bailey doctrine does not apply to multiple burglary charges, whether first or second degree burglary, even if committed pursuant to one intent and one plan. (Washington, supra, 50 Cal.App.4th at pp. 574-579.) Mitich does not persuade us that Washington's reasoning should be limited to only residential (i.e., first degree) burglaries. Furthermore, his convictions on counts 9 through 13 were for second degree burglaries and not thefts, thereby precluding the application of the Bailey doctrine. Mitich's attempt to convert his burglary convictions into convictions for theft offenses for purposes of applying the Bailey doctrine is both specious and unsupported by citation to any controlling case or other authority. Accordingly, we conclude Mitich was properly charged with, and convicted of, each of the burglaries in counts 9 through 13. None of the cases cited by Mitich persuade us to reach a contrary conclusion.
We apply the same reasoning in concluding Stevenson was properly charged with, and convicted of, each of the burglaries alleged in counts 3 and 5 through 13 and the unlawful use of personal identifying information (count 2). The Bailey doctrine did not apply to preclude his convictions on each of those counts. (Washington, supra, 50 Cal.App.4th at pp. 574-579 [regarding multiple burglary convictions].) None of the cases cited by Stevenson persuade us to reach a contrary conclusion.
Because Stevenson was charged with, and convicted of, only one count of grand theft (count 4), there are no multiple charges or convictions of theft to which the Bailey doctrine could apply.
V
PROBATION CONDITIONS
Mitich contends, and Stevenson joins in his contention, that several of the probation conditions imposed by the court were overbroad and should be stricken.
A
Mitich. In the probation report, the probation officer recommended that the trial court grant Mitich formal probation and recommended several probation conditions, including: (1) complying with a curfew if directed by his probation officer; (2) obtaining his probation officer's consent before leaving County and obtaining the court's and his probation officer's written consent before moving out of California; (3) submitting to any chemical test to determine blood alcohol content; (4) not knowingly using or possessing any controlled substance without a valid prescription and submitting samples for testing for use of controlled substances; and (5) obtaining his probation officer's approval of his residence and employment.
Mitich objected, inter alia, to the curfew and alcohol conditions, arguing there was no nexus between those conditions and his offenses. He also objected to the residence and employment approval conditions. The court overruled his objections, granted him formal probation, and imposed all of the probation conditions described above.
Stevenson. In the probation report, the probation officer recommended that the court grant Stevenson formal probation and recommended several probation conditions, including: (1) complying with a curfew if directed by his probation officer; (2) obtaining his probation officer's consent before leaving County (except for travel to or residence in Riverside if his jurisdictional transfer is approved) and obtaining the court's and his probation officer's written consent before moving out of California; (3) completing a substance abuse counseling program and/or residential treatment program if directed by his probation officer; (4) not knowingly using or possessing alcohol and attending self-help meetings if directed by his probation officer; (5) submitting to any chemical test to determine blood alcohol content; (6) not knowingly using or possessing any controlled substance without a valid prescription and submitting samples for testing for use of controlled substances; and (7) obtaining his probation officer's approval of his residence and employment. At Stevenson's sentencing, the court stated that it "incorporate[d] into this proceeding the previous comments made as to Mr. Mitich's case . . . ." Stevenson requested that the court grant him probation, but did not expressly object to any of the probation conditions recommended by the probation officer. The court granted him formal probation and imposed all of the probation conditions described above.
B
"The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety." (Ibid.) In granting probation, the court may impose any "reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).)
Because probation is a privilege and not a right, "adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights--as, for example, when they agree to warrantless search conditions." (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) Nevertheless, probation conditions that involve a waiver of constitutional rights must not be overbroad and must be narrowly drawn and reasonably related to the compelling state interests in reformation and rehabilitation. (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).) When a defendant challenges a probation condition as unconstitutionally overbroad, the essential question is whether the legitimate purpose of the condition closely fits the burden it imposes on the defendant's constitutional rights. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, supra, at p. 380.)
When a probation condition is challenged on appeal as being unconstitutionally overbroad, we review that question of law de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re Sheena K. (2007) 40 Cal.4th 875, 889.) We may strike or modify a probation condition that is unconstitutionally overbroad. (Id. at p. 892; Bauer, supra, 211 Cal.App.3d at pp. 944-945.) However, if a defendant does not object in the trial court to a probation condition, any challenge on appeal to that condition is forfeited unless it involves a pure question of law that can be resolved without reference to the particular sentencing record developed in the trial court. (Sheena K., supra, at p. 889; People v. Welch (1993) 5 Cal.4th 228, 235, 237; People v. Kendrick (2014) 226 Cal.App.4th 769, 776-778.)
C
Mitich and Stevenson contend, and the People agree, that the probation conditions imposing a curfew, requiring alcohol and substance abuse testing and completion of counseling and treatment programs, and prohibiting possession of alcohol and controlled substances without a valid prescription are unconstitutionally overbroad as unrelated to the offenses of which they were convicted and not reasonably related to preventing future criminality. (Lent, supra, 15 Cal.3d at p. 486; Olguin, supra, 45 Cal.4th at p. 380.) The record does not show they had a history of abusing alcohol or drugs, that they committed their offenses while under the influence of alcohol or drugs, or that their offenses were related to alcohol or drugs. Accordingly, the probation conditions described above relating to alcohol and controlled substances are unconstitutionally overbroad and must be stricken. (Lent, supra, at p. 486; Olguin, supra, at p. 380; cf. People v. Burton (1981) 117 Cal.App.3d 382, 390-391 [prohibition on consumption of alcohol was overbroad].) Likewise, because their offenses were committed during Bank's business hours and were not violent, the curfew conditions are also overbroad and must be stricken. (Lent, supra, at p. 486.)
D
Mitich and Stevenson further contend that the trial court improperly imposed the travel, residence, and employment conditions of their probation because those conditions are unconstitutionally overbroad as unrelated to the offenses of which they were convicted. However, neither Mitich nor Stevenson objected at their sentencing hearings to the travel conditions set forth in section 6(l) of the probation reports and the court's orders, which section requires them to obtain their probation officers' consents "before leaving San Diego [C]ounty." By not objecting below and raising their "as-applied" constitutional challenge or other challenge to the reasonableness of those conditions, we conclude they forfeited any challenge on appeal to the travel probation conditions. (In re Sheena K., supra, 40 Cal.4th at p. 889; People v. Welch, supra, 5 Cal.4th at pp. 235, 237; People v. Kendrick, supra, 226 Cal.App.4th at pp. 776-778.)
However, unlike the travel conditions, Mitich objected at the time of his sentencing to the residence and employment conditions of his probation (i.e., § 10(g) of the probation report and court's order, which section requires his probation officer's approval of his residence and employment). Although Stevenson did not expressly object to those conditions at his sentencing, the court began his sentencing hearing by stating that it "incorporate[d] into this proceeding the previous comments made as to Mr. Mitich's case." We therefore presume the court considered all of Mitich's objections, including to the residence and employment probation conditions, to have also been made by Stevenson. Accordingly, neither Mitich nor Stevenson forfeited his challenge on appeal to those conditions. Based on our review of the record, we conclude the residence and employment probation conditions challenged by Mitich and Stevenson are unconstitutionally overbroad as not bearing a sufficient nexus to their offenses or deterrence of their future criminality. Alternatively stated, the record does not show their places of residence or types or places of employment had any relationship to their offenses in this case or to deterrence of future criminality. Absent such a showing, we conclude the probation conditions requiring the approval of Mitich's and Stevenson's residences and employment by their probation officers do not bear a reasonable relationship to California's compelling interests in their reformation and rehabilitation and are unconstitutionally overbroad. (Cf. Bauer, supra, 211 Cal.App.3d at p. 942; Olguin, supra, 45 Cal.4th at p. 380; Lent, supra, 15 Cal.3d at p. 486; In re E.O., supra, 188 Cal.App.4th at p. 1153.) Therefore, those conditions must also be stricken.
VI
PAYMENT OF VICTIM RESTITUTION FINES
Stevenson contends, and Mitich joins in his contention, that the trial court erred by ordering them to make victim restitution payments through County subject to its 15 percent collection fee. In particular, they argue the court did not understand it had discretion whether to impose the full 15 percent rather than a lesser amount and whether to require payment through County rather than directly to the victim.
A
The probation report for Stevenson's sentencing recommended that the trial court order Stevenson to pay restitution, jointly and severally with Mitich and Williams, to Bank in the amount of $55,267.03, plus a 15 percent collection fee to County pursuant to section 1203.1, subdivision (l). The probation report for Mitich's sentencing recommended that the court order Mitich to pay restitution, jointly and severally with Stevenson and Williams, to Bank in the amount of $55,267.03, plus a 15 percent collection fee to County pursuant to section 1203.1, subdivision (l).
At Mitich's sentencing, Mitich informed the court that he had been making monthly payments to Bank pursuant to his settlement agreement to pay it $50,000. He asked the court to reduce the amount of victim restitution to $50,000. The court denied his request, noting that the agreement settling Bank's civil lawsuit was not binding in criminal proceedings, and stated it would order $55,267.03 in victim restitution. Mitich then argued he should be allowed to pay victim restitution to Bank directly and not be required to make payments through County and have to pay it collection fees. The court stated: "[T]he way we do that, if [you] want probation, the payments are made through Revenue and Recovery [i.e., County]. And under the statute, [it] can add the collection fee, if you want to call it that. . . . [T]he code allows for it. So your issue is not with me, it is with the Legislature."
At Stevenson's sentencing, the court stated that it incorporated the comments previously made at Mitich's sentencing. Stevenson did not expressly argue he should be allowed to directly pay victim restitution to Bank.
In sentencing Mitich and Stevenson, the court required them to pay, jointly and severally with their codefendants, to Bank victim restitution in the amount of $55,267.03 through County, plus County's 15 percent collection fee.
B
Section 1203.1, subdivision (l), authorizes the imposition of an administrative fee for collection of victim restitution that is ordered as a condition of probation, providing:
"If the court orders restitution to be made to the victim, the entity collecting the restitution may add a fee to cover the actual administrative cost of collection, but not to exceed 15 percent of the total amount ordered to be paid. The amount of the fee shall be set by the board of supervisors if it is collected by the county and the fee collected shall be paid into the general fund of the county treasury for the use and benefit of the county. . . ."
In People v. Guarneros (2016) 5 Cal.App.5th 42 (Guarneros), the trial court imposed a 15 percent fee for County's collection of victim restitution as a condition of the defendant's probation pursuant to section 1203.1, subdivision (l). (Guarneros, supra, at pp. 45-46.) The defendant filed a motion requesting that the court either waive that fee or reduce it. (Id. at p. 46.) The court denied the motion. (Ibid.) On appeal, we affirmed the judgment, including the court's order imposing County's 15 percent restitution collection fee and order denying the defendant's motion to reduce the amount of that fee. (Id. at pp. 51-52.) Interpreting section 1203.1, subdivision (l)'s language, we stated: "When the entity that collects victim restitution is a county, as opposed to the court, the board of supervisors for that county is granted the authority to decide what the collection fee should be, subject only to a ceiling of 15 percent of the restitution amount ordered in a particular case." (Guarneros, supra, at p. 49.) When victim restitution is ordered by a San Diego County Superior Court as a condition of probation, County, and not the court, is the entity that collects victim restitution under section 1203.1, subdivision (l). (Guarneros, supra, at p. 49.) We noted that, pursuant to that statute, County's Board of Supervisors enacted an ordinance imposing an administrative restitution collection fee, providing:
" 'If the court orders restitution to be made to the victim, a fee to cover the actual administrative cost of collection, but not to exceed 15% of the total restitution ordered, shall be added to the restitution fine ordered pursuant to Penal Code Section 1203.1[, subdivision] (l).' " (Guarneros, supra, at p. 49.)Although we concluded that ordinance gives a trial court discretion to impose a collection fee of up to 15 percent of the amount of victim restitution in a particular case, we rejected the defendant's contention that the trial court in his case was required to impose a collection fee in an amount equal to County's actual cost of collecting the restitution amount from him. (Id. at pp. 50-51.) We further concluded the defendant had not shown County's 15 percent collection fee was necessarily unreasonable and/or punitive and therefore an abuse of discretion. (Id. at p. 51.) Therefore, we held the trial court's imposition of the 15 percent fee for collecting the victim restitution amount as a condition of the defendant's probation pursuant to section 1203.1, subdivision (l), and County's ordinance, was not an abuse of discretion. (Ibid.)
C
Unlike the defendant in Guarneros, neither Mitich nor Stevenson filed a motion below for reduction of County's 15 percent fee for collecting the victim restitution that was ordered as a condition of their probation. Rather, Mitich argued, and his argument was incorporated into Stevenson's argument, that he should be allowed to pay victim restitution to Bank directly and not be required to make payments through County with its additional collection fees. The record does not contain any statement by the trial court affirmatively showing it did not understand it had discretion to impose a collection fee of less than 15 percent. Contrary to their argument, the court's comment that their opposition to imposition of a collection fee should be addressed to the Legislature and not the court, does not show the court misunderstood its discretion to impose a collection fee of less than 15 percent. Rather, it merely shows the court properly construed section 1203.1, subdivision (l), and County's ordinance as requiring it to impose a collection fee in an amount up to 15 percent when ordering payment of victim restitution through County. (Guarneros, supra, 5 Cal.App.5th at p. 49.) Absent an affirmative showing the court did not understand its discretion, we presume the court understood the scope of its discretion, but nevertheless exercised its discretion to impose a full 15 percent collection fee. (Cf. People v. Henson (1991) 231 Cal.App.3d 172, 182 [trial court's mere silence whether it was engaging in exercise of its discretion was insufficient to overcome presumption that it understood, and exercised, its discretion].)
We further note that the trial court stated "the code [i.e., section 1203.1, subdivision (l)] allows for it [i.e., a victim restitution collection fee]." (Italics added.) To the extent Mitich and Stevenson rely on that statement, it likewise does not show the court misunderstood its discretion to impose a collection fee of less than 15 percent.
Furthermore, as the People note, Mitich and Stevenson were each ordered to make victim restitution payments of $50 per month toward the total $55,267.03 amount. At a rate of $50 per month, it may take County about 92 years to collect a single defendant's victim restitution amount. Neither Mitich nor Stevenson, like the defendant in Guarneros, shows that the 15 percent collection fee imposed by the court will exceed County's actual costs of collecting the victim restitution amount over that lengthy time period or is otherwise unreasonable. (Cf. Guarneros, supra, 5 Cal.App.5th at p. 51 [15 percent fee imposed by trial court for County's collection of $200 per month victim restitution payments over 125-year period was not unreasonable].) Accordingly, they have not carried their burdens on appeal to show the court abused its discretion by awarding a full 15 percent collection fee rather than a reduced percentage.
If both Mitich and Stevenson make all of their payments of $50 per month for a total of $100 per month, that period will be reduced to about 46 years. --------
Likewise, Mitich and Stevenson do not carry their burden on appeal to show the court abused its discretion by denying their motions to pay victim restitution directly to Bank rather than through County. The record does not contain any statement by the trial court affirmatively showing that it did not understand it had discretion to allow Mitich and/or Stevenson to pay victim restitution directly to Bank rather than through County. Absent an affirmative showing the court did not understand its discretion, we presume the court understood the scope of its discretion, but nevertheless exercised its discretion to require them to pay victim restitution through County instead of directly to Bank. (Cf. People v. Henson, supra, 231 Cal.App.3d at p. 182.) Furthermore, as the People note, the victim restitution obligations of Mitich and Stevenson will likely continue long past their three-year probation periods. The court could reasonably conclude that payment of victim restitution through County, rather than directly to Bank, would make it more likely that their monthly payments will continue after their periods of probation end. (See, e.g., § 1214, subd. (b) ["A local collection program may continue to enforce victim restitution orders once a defendant is no longer on probation . . . ."].) Accordingly, we conclude the court did not err by requiring Mitich and Stevenson to pay Bank victim restitution indirectly through County, subject to County's 15 percent collection fee.
DISPOSITION
The judgments of conviction are affirmed, except the imposition of Mitich's sentences for both count 1 and counts 9, 12, and 13, the imposition of Stevenson's sentences for both count 1 and counts 2, 3, and 8 are vacated. The court is directed to strike the conditions of their probation imposing a curfew and relating to alcohol, drugs, and their residences and employment. The matter is remanded for resentencing consistent with the views expressed in this opinion.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. IRION, J.