Opinion
C087680
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH WAYNE ROBERSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15SCR08596)
After a jury found defendant Kenneth Wayne Roberson guilty of being a felon in possession of a firearm, he admitted five strike allegations. On appeal, we reversed the strike findings and remanded for new proceedings on the strike allegations and for resentencing with directions to the trial court to articulate a basis for imposing a $1,069 base fine.
The jury sustained the strike allegations on remand. The trial court imposed a term of six years in state prison; it did not reimpose the base fine. On appeal, defendant contends his motion for acquittal as to two of the strike allegations was erroneously denied. He further argues the $1,800 restitution fine imposed under Penal Code section 1202.4 violates due process and the prohibition against excessive fines under the state and federal Constitutions.
All further section references are to the Penal Code unless otherwise specified.
We conclude substantial evidence supports the finding that defendant was the person identified in the records of conviction submitted by the People and defendant forfeited his contention regarding the restitution fine. We accordingly affirm the judgment.
BACKGROUND
We omit the facts of defendant's crime as they are unnecessary to resolve this appeal.
The amended information alleged five prior strikes, which consisted of three robbery convictions from Alameda County in 1982, a first degree burglary conviction from Contra Costa County in 1986, and a conviction for attempted first degree burglary in San Francisco County in 1986. The People submitted three exhibits to support the allegations. Exhibit 1 showed that a Kenneth Wayne Roberson who was born on July 4, 1961, was convicted of three counts of robbery in Alameda County on June 11, 1982. Exhibit 2 showed a Kenneth Wayne Roberson was convicted of first degree burglary in Contra Costa County on March 26, 1986. Exhibit 3 showed a Kenneth W. Roberson was convicted of attempted first degree burglary in San Francisco County on October 7, 1986.
After the People rested, the defense rested and moved to acquit pursuant to section 1118.1, asserting there was insufficient evidence defendant was the person identified in any of the evidence concerning the priors. The trial court denied the motion.
We grant defendant's request for judicial notice and we incorporate by reference the record in defendant's prior appeal, People v. Roberson (Oct. 18, 2017, C080705) [nonpub. opn.]. --------
At resentencing on remand, the probation officer requested the imposition of only the $1,800 restitution fine and stayed parole revocation restitution fine imposed in the first proceeding; she did not request imposition of the base fine. The court imposed the fines as requested. Defendant did not object.
DISCUSSION
I
Motion To Acquit
Defendant contends the trial court erred in denying his motion to acquit as to the Contra Costa County and San Francisco County strike allegations. He claims the two exhibits submitted in support of those allegations contain insufficient evidence identifying him as the person who incurred those convictions. Defendant claims the records of the Contra Costa County and San Francisco County priors did not show defendant's birthdate, July 4, 1961, and the San Francisco prior does not show his full middle name. While a cover letter to Contra Costa County from the Glenn County District Attorney lists defendant's birthdate, defendant claims there is no evidence the Contra Costa County Clerk verified the birthdate or did anything other than pull up the requested case number. He concludes this does not constitute sufficient evidence of identification to support the strike priors based on these convictions.
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." (§ 1118.1.)
"An appellate court reviews the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction. [Citation.] 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- 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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Houston (2012) 54 Cal.4th 1186, 1215.) "Review of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that point." (Ibid.)
The test is not "whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Hillery (1965) 62 Cal.2d 692, 702.)
The trial court, rather than the jury, is tasked with identifying a defendant as the same person who has had an alleged prior conviction. (§ 1025, subd. (c).) Where the identity of a defendant's name is the same -- that is, the name of the person currently charged is the same as the name of the person who had the prior conviction -- the identity of a defendant may be presumed absent evidence to the contrary. (People v. Mendoza (1986) 183 Cal.App.3d 390, 401 ["It has long also been the rule in California, in the absence of countervailing evidence, that identity of person may be presumed, or inferred, from identity of name"]; People v. Sarnblad (1972) 26 Cal.App.3d 801, 805 ["There is no evidence in the record before us that defendant was not the Donald Sarnblad previously convicted. We think the name is sufficiently uncommon that the magistrate's finding of identity of person is supported by an inference based on identity of name"]; People v. Bradley (1970) 3 Cal.App.3d 273, 277-278 [since defendant failed to present any evidence to overcome or meet prima facie establishment of prior conviction based on submitted documents, no factual issue was tendered].)
When the trial court finds that a defendant is the person named in the conviction records, it may so instruct the jury. (People v. Kelii (1999) 21 Cal.4th 452, 458.) The jury then determines whether the documents are authentic and sufficient to establish that the convictions the defendant sustained are indeed those alleged. (Id. at pp. 458-459.)
Although the trial court did not make an explicit finding as to identity, it made an implicit finding identifying defendant, as it instructed the jury defendant was the person named in records submitted as evidence. The record of the Contra Costa County conviction names the convicted person as Kenneth Wayne Roberson, while the San Francisco County record identifies the person convicted as Roberson/Kenneth/W. Although defendant put identity at issue in his motion to acquit, there was no evidence he was not the person identified in these records. Even assuming the trial court could not use the birthdate listed in the cover letter to Contra Costa County, the trial court could reasonably conclude the Kenneth Wayne Roberson and Kenneth W. Roberson named in the records from San Francisco and Contra Costa Counties was defendant. (See People v. Mendoza, supra, 183 Cal.App.3d at p. 401 [California follows common law rule that middle name is immaterial to proof of identity].)
Since the trial court's implicit finding on identity is supported by substantial evidence, the court did not err in denying the acquittal motion.
II
Restitution Fine
Defendant argues the restitution fine should be vacated for violating the Eighth Amendment's excessive fines clause because there is no evidence he has the ability to pay the fine. In the alternative, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the restitution fine must be stayed pending a finding he had an ability to pay it. We disagree.
Our Supreme Court has already determined an objection necessary to challenge the imposition of a restitution fine under section 1202.4 in excess of the mandatory minimum, as here. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Defendant failed to object to the $1,800 restitution fine at the time of sentencing and has therefore forfeited this claim. (Ibid.)
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Duarte, J.