Opinion
D057847 Super. Ct. No. SCD226063
09-06-2011
THE PEOPLE, Plaintiff and Respondent, v. JESUS RICARDO MUNOZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Affirmed as modified, with directions.
A jury convicted Jesus Ricardo Munoz of unlawfully taking and driving a vehicle, receiving a stolen vehicle, and possessing burglary tools. Munoz appeals, contending the court erred by: (1) allowing the jury to consider evidence of a prior auto theft; (2) denying him pre-sentence custody credit; and (3) imposing fees and assessments for a conviction that was ultimately dismissed. We disagree with Munoz's first two contentions, but conclude that the trial court erred in its calculation of fees and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
Late one night in March 2010, Miguel Torres's Saturn car was stolen from a street near his house. The car was locked, the windows were closed, and Torres had the keys. He had not given anyone permission to take or drive the vehicle. Torres reported the car stolen to the police.
On that night, San Diego Police Officer Steven Harrison was on routine patrol in Southeast San Diego near 3900 Gamma Street. Officer Harrison saw Munoz lying on his back on the floorboard of a parked Saturn vehicle with his hands under the steering column and holding a flashlight. When the patrol car stopped, Munoz froze like a "deer-in-the-headlights" and then proceeded to walk away from the Saturn. Officer Harrison exited the patrol car and asked Munoz to stop, which he did. After inquiry, Munoz informed Officer Harrison that the Saturn was not his vehicle and that he did not know what he was doing with it.
Officer Harrison searched Munoz and the Saturn and found two keys (one in Munoz's pocket and the other in the ignition), two flashlights and latex gloves. The key in the ignition was turned forward to the "on" position, but the vehicle engine was not running. Both keys were shaved down and neither was for a Saturn vehicle. San Diego Police Detective Joseph Durand testified that shaved keys are keys that have been altered to manipulate locks and are commonly used to steal vehicles.
Officer Harrison later determined that Torres owned the Saturn, and had the vehicle returned to him. The car was not damaged and nothing was stolen from it.
The San Diego County District Attorney charged Munoz with unlawfully taking and driving a vehicle (Count 1), receiving a stolen vehicle (Count 2), and possessing burglary tools (Count 3). A jury convicted Munoz of all three charged offenses and found true that he had a prior conviction for taking and driving a vehicle, four prior prison term convictions, and a prior strike conviction. The court struck one of the four prior prison term convictions and dismissed the conviction on Count 3. Munoz appeals.
DISCUSSION
I. Prior Offense Evidence
A. Background
Prior to trial, the People moved in limine to admit evidence of Munoz's prior vehicle theft for purposes of showing intent under Evidence Code section 1101, subdivision (b). Munoz opposed the motion, arguing that the evidence was unduly prejudicial. Following a hearing, the trial court found the probative value of the evidence outweighed any prejudice and granted the motion.
At trial, San Diego County Deputy Sheriff Michael Villalobos testified that in 2003 he made a traffic stop on a Honda vehicle driven by Munoz in the Spring Valley area of San Diego County. There was a shaved key in the ignition of the Honda and another in a compartment in the driver's side door. The Honda belonged to Francisco Galeana. Galeana testified that earlier that evening he had parked and locked the car on the street near his home. He had possession of the keys when he was notified that the car was recovered. The car was not damaged and nothing was missing from it. Galeana never gave Munoz permission to take or drive his vehicle. B. Analysis
We reject Munoz's contention the trial court prejudicially erred in admitting evidence of his prior offense.
The trial court retains broad discretion in determining the relevancy of evidence (People v. Scheid (1997) 16 Cal.4th 1, 14) and we will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Evidence that the defendant committed prior bad acts is inadmissible when offered solely to prove the defendant's criminal disposition to commit such an act (Evid. Code, § 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393, 399, superseded by statute on other grounds), but "evidence that a person committed a crime, civil wrong, or other act" is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant's] disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
"'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 22.) "We have explained that 'there exists a continuum concerning the degree of similarity required for cross- admissibility, depending upon the purpose for which introduction of the evidence is sought: "The least degree of similarity . . . is required in order to prove intent. [Citation.] . . . In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance.'""' [Citations.] 'By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.' [Citation.]" (People v. Lynch (2010) 50 Cal.4th 693, 736.)
"[W]hen the other crime evidence is admitted solely for its relevance to the defendant's intent, a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant. Rather, if the other crime sheds great light on the defendant's intent at the time he committed that offense it may lead to a logical inference of his intent at the time he committed the charged offense if the circumstances of the two crimes are substantially similar even though not distinctive. [Citations]." (People v. Nible (1988) 200 Cal.App.3d 838, 848-849.) When a person acts in a like manner in similar situations, a logical inference is the person "probably harbors the same intent in each instance." (People v. Denis (1990) 224 Cal.App.3d 563, 568.)
To prove the offense of unlawful taking or driving of a vehicle, the prosecution had to establish Munoz intended to permanently or temporarily deprive the owner of title to or possession of the car. (Veh. Code, § 10851, subd. (a).) Munoz argues that the prior and current offenses lacked sufficient distinctive similarities to support the inference that he harbored the same intent in each instance. However, we conclude that the prior offense and the charged offense shared several similarities. Both vehicles were locked and parked in the evening on the street near the owner's residence. In each instance when Munoz was stopped, officers found two shaved keys (one in the ignition and the second elsewhere). Additionally, when the vehicles were recovered, they were not damaged and nothing was missing. Although these facts may be common to vehicle thefts, they nevertheless share substantially similar characteristics to warrant the inference that Munoz intended to deprive the owner of possession in each instance. Evidence of the prior vehicle theft is therefore relevant to show Munoz's intent during the current offense.
Even if we were to determine that the trial court abused its discretion in admitting evidence of the prior vehicle theft for the purpose of proving intent, we would conclude that the error was harmless. Error involving the admission of other crimes evidence is subject to the prejudice standard announced in People v. Watson (1956) 46 Cal.2d 818. (People v. Welch (1999) 20 Cal.4th 701, 749-750.) Under this standard, we determine whether it is reasonably probable that the defendant would have obtained a more favorable outcome if the error had not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
We conclude that it is not reasonably probable that Munoz would have obtained a more favorable result if the trial court excluded the prior offense evidence. Officer Harrison saw Munoz in the vehicle with his hands under the steering column and holding a flashlight. When the patrol car stopped, Munoz froze and then proceeded to walk away. Shaved keys were found in the ignition and in Munoz's pocket. Additionally, Officer Harrison found two flashlights and latex gloves. From this evidence, the jury could reasonably infer that Munoz stole the vehicle and intended to deprive the owner of its possession. Accordingly, we find no prejudicial error in admitting evidence of the prior vehicle theft.
II. Presentence Custody Credit
A. Background
When Munoz was arrested for the current offense, he was on parole. A parole hold was obtained. In addition to the current offense, Munoz violated parole by testing positive for methamphetamine approximately 12 days before the current offense and failing to participate in drug treatment. The probation officer advised the trial court that Munoz was not entitled to presentence custody credit because the time that he spent in custody was attributable to his unrelated parole violations. The trial court agreed with the probation officer and did not award Munoz any presentence custody credit. B. Analysis
Munoz contends the trial court erred in refusing to grant him presentence custody credit because the record does not indicate that his parole was revoked for the unrelated violations or that a warrant was issued for his arrest. We disagree.
Penal Code section 2900.5 (§ 2900.5) governs the award of presentence custody credits. It provides in relevant part:
"(a) In all felony and misdemeanor convictions . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . all days of custody of the defendant, . . . and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . .
"(b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed."
Applying section 2900.5, our Supreme Court in People v. Bruner (1995) 9 Cal.4th 1178, 1191, explained that "a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." Thus, "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was 'a' basis for the revocation matter as well." (Id. at pp. 1193-1194.) The burden is on the accused to establish entitlement to presentence custody credit. (Id. at pp. 1193-1194, fn. 10.)
Here, it was Munoz's burden to prove he was entitled to credit for the period of presentence custody. The probation officer reported that Munoz had two parole violations that were unrelated to the current offense and stated that Munoz is not entitled to presentence custody credit because his custody was attributable to the unrelated violations. There is nothing in the record before us contradicting the probation officer's conclusions. Munoz has not shown that the conduct underlying his current conviction was the sole reason for his presentence incarceration. Accordingly, Munoz failed to prove he is entitled to presentence custody credit.
III. Fees
Munoz argues that the trial court erred in imposing a fee pursuant to Penal Code section 1465.8 and assessment pursuant to Government Code section 70373 concerning Count 3 because his conviction on Count 3 was ultimately dismissed. The People concede, and we agree, that the trial court erred in imposing a fee and assessment for Count 3.
Penal Code section 1465.8 requires the court to impose a $30 security fee for every conviction of a criminal offense. Similarly, Government Code section 70373 imposes a $30 assessment on every conviction for a criminal offense.
Here, the conviction on Count 3 was dismissed prior to sentencing and imposition of any fees and assessments. Thus, the trial court should have imposed security fees and assessments only as to Counts 1 and 2 ($60 in fees and $60 in assessments). Our review of the abstract of judgment in this case reveals that the trial court imposed $90 in fees and $90 in assessments, indicating that fees and assessments were imposed on all three counts. Accordingly, the abstract of judgment must be corrected to reflect the correct fees and assessments.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the correct court security fees ($60) under Penal Code section 1465.8 and assessments ($60) under Government Code section 70373, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MCINTYRE, J. WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.