Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. FF512678
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
Following a jury trial, defendant Sheri Schmier was convicted of petty theft (Pen. Code, § 666; count 1) and second degree burglary (§§ 459, 460, subd. (b); count 2) for an incident at Kohl’s, and convicted of petty theft (§ 666; count 4) for an incident at Rite Aid. The jury also found true the on-bail enhancement as to count 4 (§ 12022.1). After a court trial, the court found that defendant had suffered a qualifying prior conviction within the meaning of section 666. Defendant was placed on probation for three years, with various terms and conditions, including nine months in jail with 90 days credit. Defendant was also ordered to pay various fines and fees, including a probation supervision fee of $64 per month.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred in granting the People’s motion to consolidate the cases involving the Kohl’s and Rite Aid incidents, and that the joinder resulted in the denial of due process and a fair trial. To the extent she has forfeited her challenges on appeal to the People’s motion to consolidate, defendant asserts that her trial counsel rendered ineffective assistance. She also argues that counsel provided ineffective assistance by failing to request a jury instruction concerning “the use of other crimes evidence.” Lastly, she asserts that the trial court erred by ordering the payment of a probation supervision fee as a condition of probation and, to the extent this issue has been waived, her counsel provided ineffective assistance.
For reasons that we will explain, we determine that the trial court did not abuse its discretion in consolidating the cases, and joinder did not result in the denial of due process or a fair trial. We find appropriate the People’s concession that payment of a probation supervision fee may not be made a condition of probation, and we will order the judgment modified accordingly.
II. BACKGROUND
The Information
In case No. FF512678, defendant was charged by information on June 16, 2006, with four counts: misdemeanor petty theft (Pen. Code, §§ 484, 488), petty theft with a specified prior conviction (§ 666), second degree burglary (§§ 459, 460, subd. (b)), and misdemeanor giving a false name to a peace officer (§ 148.9). The offenses were alleged to have been committed on August 25, 2005, at Kohl’s. On April 17, 2007, the prosecutor filed a motion to consolidate this case with another case, No. FF719746, in which defendant was charged with theft at Rite Aid. Over defense counsel’s oral objection, the cases were consolidated on April 23, 2007.
The consolidated information was filed on April 23, 2007. In addition to the four counts previously alleged that arose out of an incident at Kohl’s, the consolidated information also charged defendant with petty theft with a specified prior conviction (§ 666) for an incident that was alleged to have been committed on January 2, 2007, at Rite Aid. The consolidated information further alleged that defendant was out of custody on bail at the time she committed the offense at Rite Aid (§ 12022.1).
On June 5, 2007, following motion by the People, the court dismissed count 1, the misdemeanor petty theft (Pen. Code, §§ 484, 488) arising out of the Kohl’s incident, “in the interests of justice as duplicative of Count Two or lesser of Count Two.” The court then renumbered the remaining counts. The amended consolidated information thus charged defendant with petty theft with a specified prior conviction (§ 666; count 1); second degree burglary (§§ 459, 460, subd. (b); count 2); misdemeanor giving a false name to a peace officer (§ 148.9; count 3); and petty theft with a specified prior conviction (§ 666; count 4). The amended consolidated information further alleged that defendant was out of custody on bail, on a charge of felony burglary, second degree (§§ 459, 460, subd. (b)), at the time she committed the offense charged in count 4. (§ 12022.1) Counts 1, 2, and 3 pertained to the incident at Kohl’s, and count 4 pertained to the incident at Rite Aid. The trial court granted defendant’s motion to bifurcate trial of the specified prior conviction (§ 666), so that on counts 1 and 4, the jury would only determine whether the petty thefts had been committed.
The Jury Trial
During the jury trial, the court granted the People’s motion to amend the on-bail enhancement allegation (§ 12022.1) to allege that defendant was out of custody on bail or her own recognizance, on a charge of felony burglary, second degree, or on a charge of theft within the meaning of section 666, at the time she committed the offense charged in count 4. The court also granted a motion by the People to amend count 4 to conform to proof regarding the type of merchandise that was alleged to have been stolen from Rite Aid.
Kohl’s Incident on August 25, 2005
On the afternoon of August 25, 2005, Regina Thome, an employee of Kohl’s in Gilroy, saw defendant walking to the customer service desk. Thome contacted the loss prevention department to report that defendant was in the store. Thome made the report because she had seen defendant acting suspiciously in the store on previous occasions.
Chorng Tung, who was the loss prevention supervisor, received the call regarding defendant’s presence in the store. Tung testified that he had worked in loss prevention at “several places,” including at Sears for five years, then at Kohl’s for approximately eight months before leaving for college, and at Home Depot, his current employer, for almost one year. He was also a military police officer in the United States Army for six years.
After Tung received the call, he located defendant, who he identified in court, on the store’s camera system. Tung had seen her in Kohl’s “several times,” and the head of the jewelry department had talked to him about her on more than two occasions. On this occasion, Tung observed defendant at the customer service counter. Initially, Tung testified that defendant gave a box of shoes to the customer service associate and defendant received a store gift card in exchange. Tung explained that pursuant to the return policy for Kohl’s, a customer will receive a refund if they have a receipt. Without a receipt, the customer will receive a “gift card or an even exchange for an item in the same amount.”
Tung subsequently explained that he called the customer service associate after the transaction was complete because he “wasn’t too sure exactly what was going on at the time . . . .” He was told there was a discussion “about getting a refund or exchange” and he believes she ultimately received “an exchange of some kind.” Tung testified that the customer service associate put what “looked like a pair of shoes” into a plastic bag and defendant walked away with it.
Tung testified that defendant took a shopping cart, placed the bag of shoes into the cart, and went to the shoe department. After several minutes, she took two boxes of shoes and also put them into the cart. Tung testified that defendant “walked to the front of the store and then exited the store failing to pay for the merchandise.”
Tung left the camera room and attempted to apprehend defendant. A short distance beyond the store exit, Tung stopped in front, and to the right, of her. He gave his name and position at Kohl’s, and told her that he “need[ed] to talk to [her] about the merchandise in [her] possession.” Defendant ignored him and did not stop. Tung took a step back to position himself in front of her again. Defendant “shoved” Tung aside with her arm as she continued walking. Tung then called the Gilroy Police Department on his cell phone.
At trial, Tung explained that company policy did not allow him to physically detain a person unless he was physically threatened. He testified that “[o]nce physical contact is made, the rules generally are, . . . you can use the minimum amount of force necessary to detain the shoplifter if she or he presents a physical threat to you.” However, Tung did not “feel comfortable making physical apprehension to detain her” given that he “already had the police on the phone.”
As soon as Tung used his cell phone, defendant pushed the cart to the side, grabbed the bag with the box of shoes in it, and continued walking. Tung saw two boxes of shoes remaining in the cart. While on the phone with the dispatcher, Tung continued to speak to defendant. He told her, “we can talk about this, but you need to come back in the store with me. I can help you out with this. I just want to talk to you about this.” Defendant did not say anything and continued walking across the parking lot to Panera Bread, a bakery. Tung told her that “officers were already dispatched and on their way and the best thing for her to do is just stop running right now . . . .” Defendant said “fine” and then sat down.
Two other employees from Kohl’s assisted Tung, including by getting the cart containing the shoes that defendant had left behind. After defendant was taken into custody by police, Tung retrieved the two pairs of shoes that were taken from Kohl’s. Tung did not find any receipt associated with the sale of those shoes. A copy of the videotape showing defendant in Kohl’s on August 25, 2005, was provided to the Gilroy Police Department and was played for the jury.
On August 25, 2005, about 2:30 p.m., Gilroy Police Officer Taryn Hathaway received a dispatch regarding an attempt by Kohl’s to take a shoplifter into custody. Officer Hathaway was directed to Panera Bread, where she saw defendant sitting outside on a patio chair, with three employees of Kohl’s standing around her. After speaking with one of the employees, Officer Hathaway took defendant into custody for petty theft.
Officer Hathaway testified that in her experience, there are two types of retail thieves: the “opportunity thief” who “happens to be in a store and sees something and takes it,” and the “professional petty thief” who plans the theft. To tell the difference, Officer Hathaway looks for “[s]omeone who is prepared to come in.” For example, people bring in empty, or partially empty, purses or shopping bags to place items into them. Officer Hathaway testified that these purses and bags are known as a “booster bag,” which is a slang term for “[a] large item with which to conceal stolen merchandise and take it from the store.” She stated that people “[o]ccasionally . . . line the bag with tinfoil hoping to fool the sensors,” although “it doesn’t usually work . . . .” Officer Hathaway also looks for whether the person has identification, or items to make a purchase, such as money, a checkbook, or credit cards.
The prosecutor initially sought to have Officer Hathaway “recognize[d] . . . as an expert in determining the items associated with or indicative of an opportunity thief versus a professional thief.” After voir dire by defense counsel, the prosecutor withdrew the request.
According to Officer Hathaway, defendant had a “large purse” or a “bigger bag with a strap.” The purse did not contain aluminum foil. There was a wallet in defendant’s purse and nothing else, although “[t]here was a lot of room left in the purse.” There were no credit cards in defendant’s wallet, nor an ATM card, cash, or a checkbook. The wallet did contain two paper gift certificates or gift cards from Kohl’s, one from Walmart, one from Mervyns, and one from Costco. They were not “purchased gift cards.” There were no receipts from any stores in defendant’s purse.
When asked by Officer Hathaway, defendant stated that her name was Sheri “Tevis.” The expired driver’s license in defendant’s wallet showed that her name was Sheri “Schmier.” Defendant also stated that she lived at the Santa Clara address listed on the expired driver’s license. When Officer Hathaway “did a check on [defendant’s] name in a current driver’s license,” the current license reflected an address in Hollister. Officer Hathaway confronted defendant regarding the name “Tevis.” Defendant first stated that it “was her married name and she hadn’t bothered to change it on her driver’s license yet.” When questioned further, defendant then stated that “she was not married to Mr. Tevis.” A vehicle in the parking lot was registered to defendant and George T. Tevis.
Rite Aid Incident on January 2, 2007
The People presented evidence by way of a request for judicial notice, which the trial court granted, that defendant was out of custody on her own recognizance or bail on January 2, 2007, on a felony charge of second degree burglary (§§ 459, 460, subd. (b)) and theft within the meaning of section 666.
Salvador Mendoza testified that he had been a loss prevention officer for Rite Aid for one year. He had previously conducted surveillance while working for a private investigation company. On January 2, 2007, about 4:30 p.m., he was “on the floor doing physical surveillance” at Rite Aid in Gilroy. Surveillance entailed him watching every person in the store for a period of time to “determine by the way they’re acting if you are going to continue surveillance . . . .” Within that initial period of time, Mendoza attempted to ascertain whether the person is “looking to the roof for cameras, looking around for associates or carrying big handbags.” Mendoza explained that big handbags are “the most common way of shoplifting.”
As a result of speaking with the store supervisor, Mendoza “pa[id] attention” to a person who was in the store with a large purse. At trial, Mendoza identified defendant as the person who he saw in the store. He first observed her “in the candy aisle selecting candy.” She proceeded to the other side of the aisle, which was the toy aisle. She “selected” three items, which Mendoza could not identify from his location in the back of the store. Next, he observed defendant “go towards an aisle carrying items in her hand” and then “come out the other end of the aisle, take her hand out of her purse and nothing in her hand.” Mendoza testified that he did not “know exactly what items she put in her purse because when she walked in the middle aisle she had the merchandise. As soon as she hit the other aisle she didn’t have the merchandise anymore, and she was taking her hand out of her bag.” Mendoza testified that defendant went to the electronics aisle, and he went through the aisle where defendant had been “to see if the merchandise that she had in her hand she might have put it on the floor, or she might have put it on the aisle but it was not there.”
Mendoza continued visual surveillance of defendant from the back of the store. He saw her “selecting cell phone accessories” and putting them into her purse. On cross-examination, Mendoza admitted that he did not know “exactly what” cell phone accessory she selected. He testified that he “saw something in her hands,” but he could not “tell what it was; . . .” During the entire time that Mendoza watched defendant, the distance between them varied from 15 feet to 25 feet. On redirect examination, he testified that he knew she had selected a cell phone accessory because the store kept everything related to cell phones, such as cell phone chargers and cell phone holders, in a “specific section.” He also explained that the accessories were made by the same company and do not have distinct or unique packaging. After leaving the electronics aisle, defendant went to a different aisle before exiting the store without paying for the merchandise. Mendoza testified that he observed defendant remove a total of five items from the toy aisle and the electronics aisle.
Mendoza caught up to defendant outside the store. He showed his badge, identified himself “as loss prevention,” and said, “you didn’t pay for merchandise.” Defendant stated, “I don’t have anything,” and continued to her van, in which a female passenger was sitting. Mendoza testified that company policy prevented him from physically detaining anyone. He wrote down the license plate number of the van, a Plymouth Voyager with green tinted windows, and ran back to the store.
Mendoza testified that Rite Aid’s cameras captured some images of defendant. The video recordings from the cameras were played for the jury.
Andrew Viale, a Gilroy Police Officer, responded to the Rite Aid store and talked to Mendoza on January 2, 2007. Officer Viale testified that Mendoza reported that seven items were taken from Rite Aid.
Officer Viale determined that the license plate number written down by Mendoza belonged to a vehicle registered to defendant and George T. Tevis in Hollister. Officer Viale contacted defendant on January 2, 2007. She acknowledged owning a 1997 green Plymouth Voyager, but she denied driving to or being in Gilroy that day. She claimed that her van was in the repair shop and that she did not know the name of the shop. Several days later, in a voicemail message to Officer Viale, she stated that her vehicle was at “D. and J. Auto” in Salinas and provided a telephone number for the business. Officer Viale was unable to confirm the existence of the auto shop through the Salinas Police Department. When he called the telephone number provided by defendant, the call went to voicemail but it “did not sound like a business voice mail.”
Officer Viale contacted defendant and “told her [his] findings in this case about there being no D. and J. Auto.” She continued to state that she was not in Gilroy and her van was in the repair shop on the date in question.
The Verdicts, Findings on Prior Allegations, and Sentencing
At the close of evidence, the court granted the People’s motion to dismiss count 3, the misdemeanor giving a false name to a peace officer. While the jury was deliberating, defendant waived jury trial on the alleged prior conviction. The jury found defendant guilty on the remaining three counts for petty theft and burglary (counts 1, 2, and 4) and found true the enhancement allegation (§ 12022.1). As to counts 1 and 4, following a court trial, the court found defendant had suffered a qualifying prior conviction within the meaning of section 666.
At the sentencing hearing, the trial court suspended imposition of sentence. Defendant was placed on probation for three years, with various terms and conditions, including nine months in jail with 90 days credit. A general order of restitution was made, and defendant was ordered to pay various fines and fees, including a probation supervision fee of $64 per month.
III. DISCUSSION
On appeal, defendant contends that the trial court erred in granting the People’s motion to consolidate the cases involving the Kohl’s and Rite Aid incidents, and that the joinder resulted in the denial of due process and a fair trial. To the extent she has forfeited her challenges on appeal to the People’s motion to consolidate, defendant asserts that her trial counsel rendered ineffective assistance. She also argues that counsel provided ineffective assistance by failing to request a jury instruction concerning the use of “other crimes evidence.” Further, she asserts that the trial court erred by ordering the payment of probation supervision fees as a condition of probation and, to the extent this issue has been waived, her counsel provided ineffective assistance.
Motion to Consolidate
On April 17, 2007, the prosecutor filed a motion to consolidate the case involving the incident at Kohl’s with the case involving the incident at Rite Aid. Among other things, the prosecutor argued that defendant was “charged with theft offenses in each case,” the two cases “contain[ed] the same class of crimes,” and consolidation was proper under section 954.
The motion was heard on April 23, 2007. Defense counsel orally objected to consolidation, stating: “I would briefly just object for the record. The objection would be that it is a violation of [defendant’s] federal and state due process rights in that the cases are so similar it will in effect be used as character propensity evidence, because if the jury finds guilty of one they will inevitably find guilty on the other because the charges are so similar.” The trial court granted the motion, stating it was “satisfied that this is an appropriate matter for consolidation.”
On appeal, defendant contends the trial court’s ruling was an abuse of discretion “because evidence of the crimes charged would not have been cross-admissible in separate trials and the spillover effect of evidence from the Kohl[’]s incident impermissibly tainted the jury’s consideration of the relatively weaker prosecution case in the Rite Aid incident.” Defendant also asserts that the danger of prejudice was substantial because the jury was not given an instruction “regarding the use of other crimes evidence such as CALCRIM 375.” Further, defendant argues that the joinder denied her due process and a fair trial.
Defendant recognizes that she did not raise all of the same arguments in opposition to the People’s motion in the trial court, and she asserts on appeal that her counsel accordingly rendered ineffective assistance. We will address the merits of the issues raised by defendant in response to her contention that the failure of her counsel to assert the same objections in the trial court constituted ineffective assistance of counsel.
Consolidation
“ ‘The law prefers consolidation of charges.’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 574.) Section 954 states in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.”
Here, defendant does not contest that the charges arising from the Kohl’s incident (petty theft with a prior conviction and second degree burglary) were of the same class of crimes as the charge arising from the Rite Aid incident (petty theft with a prior conviction).
Prejudice
A trial court may sever counts that are otherwise joinable. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128.) Section 954 provides that the court, “in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” “Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. [Citations.] [¶] In assessing potential prejudice, we examine the record before the trial court at the time of its ruling. The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case. [Citations.]” (People v. Zambrano, supra, 41 Cal.4th at pp. 1128-1129; see also People v. Koontz (2002) 27 Cal.4th 1041, 1075.)
In this case, the parties dispute whether evidence concerning the Kohl’s and Rite Aid incidents would have been cross-admissible in separate trials. Defendant argues that “there were insufficient similarities between the two cases to show that they were part of a common design or plan by [her] under Evidence Code section 1101, subdivision (b).” The People respond that Evidence Code section 1101, subdivision (b), “permits evidence that the defendant committed a crime or other act to prove intent, knowledge, and/or absence of mistake or accident.” The People contend that in this case, “the evidence was cross-admissible to help prove that [defendant’s] actions were intentional, that she knew what she was doing on each occasion, and that her leaving the store with unpaid merchandise was not the result of an accident or mistake.” In reply, defendant asserts that her “defense for the Rite-Aid incident was not that it was a mistake, but rather that it didn’t happen; in other words, [she] didn’t take anything from the store.” She therefore maintains that “[e]vidence from the two incidents was not cross-admissible.”
Evidence Code section 1101, subdivision (a), generally provides that evidence of specific instances of the defendant’s conduct is not admissible to prove the defendant’s conduct on a specified occasion. Subdivision (b) permits evidence of the defendant’s other crimes “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
We need not resolve this issue regarding cross-admissibility. “[S]ection 954.1 expressly provides that ‘where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.’ (Italics added.) Thus, ‘cross-admissibility is not the sine qua non of joint trials.’ [Citation.] Therefore, while ‘prejudice is usually dispelled’ if ‘evidence of one crime would be admissible in a separate trial of the other crime’ [citation], ‘lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder. [Citations.]’ [Citations.]” (People v. Geier (2007) 41 Cal.4th 555, 575 (Geier).)
As to the other factors for assessing potential prejudice, this was not a capital case, and the record does not reflect that the trial court had any information at the time it ruled that the charge(s) resulting from either incident—petty theft with a prior conviction and second degree burglary in the Kohl’s case, and petty theft with a prior conviction in the Rite Aid case—were unusually inflammatory in relation to the other, or that one case was weak while the other case was strong. Defendant in her reply brief points to certain evidence from the preliminary hearing in the Rite Aid case to argue that the Rite Aid case was “weaker.” She acknowledges, however, that “[r]egarding the Kohl[’]s incident, [she] had waived preliminary hearing for that charge . . . .” In the absence of any showing to the trial court concerning the Kohl’s incident, defendant failed to demonstrate the relative strengths or weaknesses of the cases at the time the trial court ruled on the motion. Therefore, based on the record at the time the trial court ruled, we conclude that the trial court did not abuse its discretion in granting the People’s motion to consolidate the cases.
In her reply brief, defendant for the first time asserts that her counsel “was ineffective for failing to set forth the factual basis for the objection [to the motion to consolidate] either orally or in writing, including the factual basis for the Kohl[’]s incident.” “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) While defendant failed to raise this particular aspect of her counsel’s performance prior to the reply brief, we do consider the facts concerning both the Kohl’s and Rite Aid incidents in connection with defendant’s due process argument and, as we will explain, defendant fails to show that she was denied due process or a fair trial as a result of the consolidation.
Due Process
“Because the issue is raised on appeal following trial, we must also consider whether, ‘despite the correctness of the trial court’s ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.’ [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 174; Geier, supra, 41 Cal.4th at p. 575.) In this case, we find that defendant has not made such a showing.
Defendant primarily relies on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 (Bean) and People v. Grant (2003) 113 Cal.App.4th 579 (Grant). In Bean, the defendant was convicted in one trial of the separate murders, robberies, and burglaries of two women. The Ninth Circuit reversed the conviction on the charges as to one of the women, concluding that the joinder of the charges deprived the defendant of a fair trial. In reaching its conclusion, the Ninth Circuit found that there was a “substantial disparity” in the strength of the evidence in the two cases. (Bean, supra, 163 F.3d at p. 1085.) Given the disparity between the evidence, as well as the lack of cross-admissibility of the evidence, the prosecutor’s encouragement to the jury “to consider the two sets of charges in concert, as reflecting the modus operandi characteristic of [the defendant’s] criminal activities” (id. at p. 1084), and the lack of ameliorative instructions to guide the jury, the Ninth Circuit reasoned that the jury could not have compartmentalized the evidence and assessed the evidence on the two sets of crimes separately. (Id. at pp. 1084-1086.)
In Grant, supra, 113 Cal.App.4th 579, the defendant was charged with burglary (count 1), receiving and concealing stolen property (count 2), and possession of personal property with a removed serial number (count 3). (Grant, supra, 113 Cal.App.4th at p. 583.) Count 3 was dismissed at the close of evidence, and defendant was convicted of the remaining two counts. (Ibid.) The Court of Appeal determined that the trial court did not abuse its discretion in denying defendant’s pretrial motion to sever each of the counts. However, it found that “the joinder substantially prejudiced defendant’s right to a fair trial” and provided four reasons. (Id. at p. 587.) First, the evidence was not cross-admissible. “Second, the prosecutor urged the jury to draw the impermissible inference that, because defendant possessed stolen computer equipment (count 2), he burgled the school for computer equipment (count 1). Third, the trial court refused defendant’s request for an instruction on the non-cross-admissibility of the evidence on counts 1 and 2, and the trial court’s other instructions did not ameliorate these errors. Fourth, the evidence on counts 1 and 2 was considerably similar, and the evidence on count 1 was not strong.” (Id. at p. 588.) The court concluded that it was “therefore likely that the jury used the evidence that defendant received and was concealing computer equipment stolen from a school (count 2) to infer he burgled the school for computer equipment (count 1).” (Ibid.)
In this case, defendant asserts that “[t]he Rite Aid case was relatively much weaker . . . than the Kohl[’]s case because no merchandise was ever recovered from [her], [she] was not detained or arrested at the scene, and the loss prevention employee’s testimony was unclear as to what was supposedly taken from Rite Aid.” Further, the jury heard testimony regarding the Kohl’s incident first, including testimony from Officer Hathaway concerning “ ‘professional thie[ves].’ ” Defendant argues consolidation of the charges for the two incidents led the jury to “ ‘infer criminal propensity,’ ” which, in turn, allowed the jury to rely on the evidence concerning the Kohl’s incident “ ‘to strengthen the otherwise weak case against [her] for the’ Rite Aid charges.”
We find Bean and Grant distinguishable. First, we disagree with defendant that the Rite Aid evidence was relatively weaker than the Kohl’s evidence. The charge(s) arising from the Kohl’s and Rite Aid incidents were each based on testimony from a loss prevention officer who identified defendant at trial as the person who took store merchandise without paying for it. Although the loss prevention officer in the Rite Aid case could not specify the exact items taken from the store, this aspect of his testimony did not weaken his other testimony that at least five items were taken by defendant from at least two aisles in Rite Aid. Further, that those items were never recovered from defendant does not diminish the loss prevention officer’s testimony that the theft had occurred. There was also other, compelling evidence concerning defendant fleeing and lying about her whereabouts on the day of the Rite Aid incident, which buttressed the Rite Aid employee’s testimony that defendant had committed the theft. The loss prevention officer wrote down the license plate number for the vehicle in which defendant fled, and that vehicle was registered to defendant. Officer Viale was unable to confirm her asserted alibi that she had not been in Gilroy that day due to her vehicle being in the repair shop. Regarding the Kohl’s incident, defendant’s counsel attempted through cross-examination and in closing to suggest that the loss prevention officer from Kohl’s was biased against defendant due to preexisting, but never proven, suspicions of prior thefts by defendant, and that the camera recordings from Kohl’s did not support the loss prevention officer’s testimony about what happened in the store. In considering the evidence presented regarding each incident, both cases were relatively strong for the prosecution.
We do not believe that the testimony arising out of the Kohl’s incident and distinguishing the professional and opportunity types of thieves improperly influenced the jury’s consideration of the theft charge arising from the Rite Aid incident. First, from the testimony concerning the Rite Aid incident alone, the jury had evidence suggesting defendant was planning a theft. The loss prevention officer for Rite Aid testified that he looked for people carrying “big handbags” because such bags are “the most common way of shoplifting.” The employee further testified that defendant had a large purse with her and that she placed several items in it, thus suggesting that defendant had planned to commit, and did commit, a theft at Rite Aid. Consequently, we do not agree “that there was a spillover effect of evidence admitted in connection with the [Kohl’s case] into the [Rite Aid] case, much less that such evidentiary spillover resulted in a due process violation.” (Geier, supra, 41 Cal.4th at p. 578.)
Second, unlike Bean and Grant, the prosecutor in this case did not suggest to the jury that they should consider the charges concerning the Kohl’s incident (petty theft and burglary) in concert with the charge concerning the Rite Aid incident (petty theft). Throughout his opening and closing statements, the prosecutor made clear that the case involved separate crimes on separate occasions, and he carefully described each incident without any suggestion that evidence from one incident could or should be used to bolster the jury’s conclusion regarding the other incident. To the extent the prosecutor made references in his closing statement to a “professional thief” or the characteristics of one, it was in the context of discussing the burglary charge and the incident at Kohl’s. In sum, the prosecutor did not suggest to the jury that the evidence arising from the Kohl’s and Rite Aid incidents was cross-admissible, nor did he encourage the jury to consider evidence from either incident in reaching its verdict on the charge or charges arising out of the other incident.
Defendant in her reply brief complains that the prosecutor in his opening statement “distinguished [her] from someone who stole on the spur of the moment and labeled her ‘a true classic petty thief.’ ” Defendant reads more into the opening statement than that actually presented by the prosecutor. The prosecutor briefly and generally distinguished the “classic opportunity petty theft” with “a person that plans to steal . . . before they even go into the store.” After describing the Kohl’s and Rite Aid incidents, the prosecutor then characterized the case against defendant as “simple straightforward two petty thefts by a true classic petty thief.” The prosecutor did not clearly articulate in the opening statement whether the evidence would show that defendant was a thief who planned, as contrasted with an opportunity thief. The prosecutor had simply explained to the jury that there were two types of thieves.
Third, different witnesses testified regarding the Kohl’s and Rite Aid incidents, and the prosecutor presented all the evidence concerning the Kohl’s incident together, followed by all the evidence concerning the Rite Aid incident. The jury was instructed as to CALCRIM No. 3515 that each count charged in the case was a separate crime, it must consider each count separately, and it must return a separate verdict for each one. (See People v. Koontz, supra, 27 Cal.4th at p. 1075 [finding no error in joinder and explaining, among other things, that the jury was instructed “in the language of CALJIC No. 17.02 to decide each count separately”].) In view of “the relative simplicity of the issues and the straightforward manner of presentation” (United States v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1071), we find that the charges arising out of the two incidents were distinct and easily separable.
In sum, there is little likelihood that evidence concerning defendant’s crimes at Kohl’s affected the jury’s verdict regarding the charged theft at Rite Aid.
In view of defendant’s failure to make a “clear showing of prejudice” when the trial court granted the motion to consolidate (People v. Zambrano, supra, 41 Cal.4th at p. 1128), or that “gross unfairness” occurred from the joinder such as to deprive her of a fair trial or due process (People v. Sandoval, supra, 4 Cal.4th at 174), we conclude that it is not reasonably probable that defendant would have obtained a more favorable result had counsel articulated the same arguments as those raised on appeal. Accordingly, defendant fails to establish her claim for ineffective assistance of counsel. (People v. Price (1991) 1 Cal.4th 324, 440 [to prevail on claim of ineffective assistance of counsel, defendant must show, among other things, “that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings”].)
Jury Instruction
Defendant contends that trial counsel rendered ineffective assistance by failing “to request any jury instruction regarding the use of other crimes evidence, such as CALCRIM 375, to instruct the jury regarding the prohibition on cross-admissibility of the evidence . . . .” In her reply brief, she asserts that “defense counsel could have offered or drafted a limiting or cautionary instruction other than CALCRIM 375, such as, for example, the limiting instruction” proposed by the defendant in Grant, supra, 113 Cal.App.4th 579.
In Grant, the defendant proposed the following instruction: “ ‘[t]he admissibility of other crimes evidence for the purpose of proving identity depends on whether the offenses shared marks of distinction. Only common marks having some degree of distinctiveness tend to raise an inference of identity and thereby invest other crimes evidence with probative value. [¶] The strength of the inference in any case depends upon two factors: [¶] 1. the degree of the distinctiveness of individual shared marks, and [¶] 2. the number of minimally distinctive shared marks.’ ” (Grant, supra, 113 Cal.App.4th at p. 592, fn. 5.)
“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price, supra, 1 Cal.4th at p. 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Here, defendant fails to show that it is reasonably probable a more favorable result would have occurred if counsel had requested, and the jury had been given, an instruction concerning “the use of other crimes evidence.” As we have explained, the evidence as to each count was strong, the prosecutor did not encourage the jurors to consider the evidence or charges for the two different incidents in concert, the evidence and charges for the two incidents were distinct and easily separable, and the jury was instructed to consider each count separately. We also do not find the charge(s) arising from one incident to be any more inflammatory in comparison to the charge(s) arising from the other. We conclude that defendant has not shown ineffective assistance based on defense counsel’s failure to request a jury instruction concerning “other crimes evidence” as argued on appeal. (People v. Mendoza (2000) 24 Cal.4th 130, 163 [rejecting the defendant’s claim for ineffective assistance of counsel based on counsel’s failure to request an instruction that evidence of one crime may not be used as evidence of another offense, “because of the absence of any appreciable likelihood of prejudice”]; see People v. Arias (1996) 13 Cal.4th 92, 140-141 [instruction that a joined crime “could not be considered as proof that [the defendant] is a person of bad character or criminal disposition and thus committed the other charged crimes” is “not necessary or proper in a case where charges are properly joined, particularly where, as here, CALJIC No. 17.02 was given”].)
Defendant asserts that “the jury’s verdicts were close, as evidenced by the jury’s request to view the videotape.” We decline to draw this inference from the jury’s request, which was made after only a few minutes of deliberation at most. The bailiff was sworn to take charge of the jury at 12:04 p.m., and the jury left for lunch shortly thereafter at 12:15 p.m. The jurors returned to the jury deliberation room at 1:20 p.m. Ten minutes later, at 1:30 p.m., the jury submitted a note requesting to view the video recordings from Kohl’s and Rite Aid.
Probation Supervision Fee
At the sentencing hearing, the trial court set forth several conditions of defendant’s probation; ordered her to pay fines, fees, and a penalty assessment; and ordered her to provide samples pursuant to section 296. The trial court then stated: “Pre-sentence investigation report of $450. $64 per month in supervision fees. I’m not going to order appointed counsel fees. Do you accept probation on those terms, ma’am?” Defendant responded, “Yes, I do.”
On appeal, defendant contends that the order requiring her to pay a probation supervision fee of $64 per month as a condition of probation “is illegal and unauthorized by Penal Code section 1202.1b.” Defendant asserts that a claim regarding an unauthorized sentence may be raised for the first time on appeal, and the probation supervision fee should be stricken. She also argues that her counsel’s failure to object to the fee as a condition of probation constituted ineffective assistance.
The People acknowledge that a probation supervision fee “should be imposed as a separate order and not as a condition of probation.” The People contend that the record in this case “is ambiguous as to whether the probation supervision fee was a separate order . . . .” The People maintain that the case should be remanded to the trial court to “allow it to impose the probation supervision fee by separate order.”
The People also suggest that “[t]o avoid future appellate issues following remand, further proceedings regarding the order to pay probation supervision costs should include an appropriate determination of [defendant’s] ability to pay those costs.” Because defendant does not challenge the amount of the probation supervision fee, only the fact that it was imposed as condition of probation, we decline to reach the issue of the amount of the fee.
In reply, defendant argues that the trial court “clearly ordered” the fees as a condition of probation. Defendant requests that this court follow People v. Hart (1998) 65 Cal.App.4th 902, by “delet[ing] the order to pay costs of probation from the conditions of probation.”
As a threshold matter, we find appropriate the People’s implied concession that defendant may raise for the first time on appeal the claim that the fee may not be imposed as a condition of probation. The general rule is that a condition of probation cannot be challenged on appeal unless objected to at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228, 235; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071.) However, the California Supreme Court has established an exception to the rule that only “ ‘claims properly raised and preserved by the parties are reviewable on appeal’ ” for claims of unauthorized sentences or sentences entered in excess of jurisdiction. (People v. Smith (2001) 24 Cal.4th 849, 852.) “Because these sentences ‘could not lawfully be imposed under any circumstances in the particular case’ [citation], they are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ ” (Ibid.) In this case, defendant asserts that an order requiring payment of a probation supervision fee as a condition of probation is not authorized by section 1203.1b. Defendant may therefore raise the issue for the first time on appeal.
Section 1203.1b, subdivision (a), provides that a defendant may be ordered to pay “all or a portion of the reasonable cost of any probation supervision,” depending upon the defendant’s ability to pay. However, section 1203.1b does not authorize payment of either costs or fees as a condition of probation. “These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, § 1203.1b, subd. (d); People v. Hart[, supra,] 65 Cal.App.4th [at pp.] 906-907.)” (People v. Washington (2002) 100 Cal.App.4th 590, 592-593.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of probation supervision costs. (People v. Hart, supra, 65 Cal.App.4th at p. 907; People v. Bennett (1987) 196 Cal.App.3d 1054, 1056-1057; People v. Wilson (1982) 130 Cal.App.3d 264, 268-269.)
Section 1203.1b, subdivision (a), provides in part: “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies.”
Section 1203.1b, subdivision (d), provides in part: “Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.”
At the sentencing hearing in this case, the trial court, after imposing probation and reciting various terms and conditions, stated: “$64 per month in supervision fees. I’m not going to order appointed counsel fees. Do you accept probation on those terms, ma’am?” The reference to “those terms” of probation, following the court’s recitation of various matters, including a probation supervision fee, can be interpreted as imposing the probation supervision fee as a term or condition of probation. Because the record can be interpreted as stating that defendant’s probation is conditioned upon payment of a probation supervision fee, modification of the conditions of probation is appropriate. We will direct the trial court to modify the probation order by deleting the condition that defendant pay a probation supervision fee from the conditions of probation and to enter a separate order pursuant to section 1203.1b, directing the payment of such a fee. (People v. Hart, supra, 65 Cal.App.4th at p. 907.)
The clerk’s minutes from the hearing do not indicate whether the fee was imposed as a condition of probation.
Because defendant’s claim of ineffective assistance is based on her trial counsel’s failure to object to the fee as a condition of probation, our modification of the order makes it unnecessary to address defendant’s ineffective assistance of counsel claim.
IV. DISPOSITION
The case is remanded to the trial court to amend the judgment, to delete that portion of the judgment (order granting probation) directing defendant to pay a probation supervision fee as a condition of probation; and to enter a separate order pursuant to section 1203.1b, directing the payment of such a fee. As modified, the judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J. DUFFY, J.
The video recording from Kohl’s (along with a television) was brought into the jury deliberation room at 1:55 p.m. The video recording from Rite Aid required the operation of a laptop computer in order to view it, so the jury subsequently watched it in court at 2:51 p.m. “with the assistance of counsel.” At 3:21 p.m., the jurors completed watching the video recording from Rite Aid and returned to the jury deliberation room. Nine minutes later, the jury notified the bailiff that it had reached a verdict.