Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F15598.
Duffy, J.
Defendant Brandon Kenneth Shawhan was convicted of three felony counts relating to his arrest in July 2007 at the Capitola Mall (Mall). A jury convicted defendant of commercial burglary (Pen. Code, § 459), receiving stolen property (§ 496, subd. (a)), and vandalism (§ 594, subd. (b)(1)). The court suspended imposition of sentence and placed defendant on three-years’ probation on the condition that he serve 180 days in the county jail.
All dates are 2007 unless otherwise stated.
Further statutory references are to the Penal Code unless otherwise stated.
Defendant contends that the court erred in admitting certain hearsay evidence as to the replacement cost of the vandalized personal property. Without that erroneously admitted evidence (defendant contends), there was insufficient evidence that the vandalism involved a loss of $400 or more; accordingly the felony conviction cannot stand and must be reduced to a misdemeanor under section 594, subdivision (b)(2)(A). Defendant also argues that the court erred by failing to impose a stay pursuant to section 654 on any sentence for the receiving stolen property count because that crime and the burglary conviction arose out of the same act or an indivisible course of conduct.
We conclude that the court erred by admitting the evidence of the value of the personal property vandalized and that the error was not harmless. Because the court suspended imposition of defendant’s sentence, we reject as premature his claim of error under section 654. Accordingly, we will modify the judgment to reflect that defendant’s vandalism conviction is the misdemeanor offense specified in section 594, subdivision (b)(2)(A). As so modified, we will affirm the judgment.
We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)
I. Prosecution Evidence
Lorenzo Carmagnola Ramos, a security guard working the graveyard shift at the Mall, worked the evening of July 5 to the early morning of July 6. The police notified him that an alarm had been triggered at the Fast Fix business cart in the Mall. After being informed of this, Carmagnola went to investigate the area. (He did not hear an alarm.) Carmagnola did not see anyone at the Fast Fix cart, but he heard loud banging coming from the Capitola Shades cart and discovered defendant behind the cart that was enclosed by a tarp. Defendant attempted to leave but was not successful. Carmagnola called the police and sat with defendant in the food court while waiting for the police to arrive.
Another witness, Saidful Chowdhury, who owned two of the businesses operating out of carts at the Mall, testified that the carts were covered at night with tarps that zipped up and were locked with a padlock.
Capitola Police Officer Kelly Minium was dispatched to the Mall at about 3:30 a.m. on July 6 when a silent alarm was triggered at one of the businesses. He observed Carmagnola and defendant inside the Mall. Carmagnola asked the officer to watch defendant while the security guard investigated further. Officer Minium obtained defendant’s consent to conduct a search of his person and his duffle bag. He located in defendant’s front pants pockets a large sum of currency and coins; defendant also possessed a screwdriver, and a paring knife in a cardboard sheath (prosecution exhibit 6). The cash and coins totaled $435.25, including 107 quarters.
After Officer Minium arrived at the scene, Carmagnola discovered that the tarps from the other carts at the Mall were also slashed, some cash registers had been pulled out, and there were smudgy black handprints on some of the tarps. Capitola Police Officer Marquis Booth walked around the Mall with Carmagnola to observe and document the damage. Officer Booth testified that there was evidence that eight carts had been broken into—as demonstrated by the fact that the tarps to the carts had been cut. There was also evidence that four cash registers had been tampered with and money possibly taken from the cash drawers.
Qing You Wang, an employee of VIP Massage, located in the Mall, testified that he discovered a theft of $180 from the cash register the morning of July 6. Later that day, he discovered that his paring knife was also missing. Wang identified prosecution exhibit 6 as the missing knife.
Saidful Chowdhury, the owner of two businesses operating out of carts at the Mall (Video Button and Custom Engraving & License Plates) testified that the tarps that covered and locked up both businesses at night had been cut and his cash registers had been broken. He also lost approximately $9 to $10 in quarters from the cash register at Video Button.
Gopal Pandey, owner of another business operating out of a cart at the Mall (Bodyline) had the cover to his booth sliced and cash register broken. Approximately $120 was stolen from his cash register.
Donald Chilcott, owner of another business operating out of a cart at the Mall (Capitola Lock and Key) had the cover to his cart sliced and cash register broken. Approximately $190 was stolen from his cash register, including about $10 in quarters.
Lynsey Niizawa, an employee of the Mall, was the specialty leasing manager at the time of the incident. She was responsible for all of the tenants operating out of carts at the Mall. The carts, including the tarps that cover and secure them at night, are owned by the Mall and leased to the tenants. As a result of a weekly walkthrough of the Mall, Niizawa learned that about five of the tarps covering the carts had been irreparably damaged. She received a quote from the company that sells the carts, Creations at Dallas (Creations), that the cost of replacing one tarp was approximately $1,000. To her knowledge, the Mall had not purchased any replacement tarps; the damaged ones were replaced with spare tarps the Mall had for unleased carts.
This testimony is the subject of one of defendant’s claims of error and is discussed in part II of the Discussion, post.
II. Defense Evidence
Ken Ly works at the Fast Fix cart located at the Mall. The tarp that covers the cart was sliced when he reported for work the morning of July 6. The cart has an alarm based on motion sensors; there is an audible sound (siren) when the alarm is triggered.
Defendant testified that he is a transient from Ohio. He works periodically in Ohio as a housepainter with his father. Before the trial in September, the last time he had worked was in June; his father paid him about $200. He had also saved about $200 to $300 before that time.
Defendant was on vacation in the Santa Cruz area in July. He went to the Mall between 7:30 and 8:30 on the evening of July 5. He used the restroom and then fell asleep for a long time (about seven hours). When he awakened, he heard the sound of an alarm. He walked out into the Mall to the area of the food court; he noticed that his wallet was missing and started looking for it. He was looking under one of the carts because he thought someone might have kicked his wallet. After about five to 10 minutes, he encountered Carmagnola. Carmagnola asked defendant to sit down and they spoke for 15 to 20 minutes. There was no point at which defendant tried to leave. Officer Minium arrived and asked defendant to stand up so that he could conduct a search. The officer found approximately $400 and some change in defendant’s pockets. Defendant also had a knife in his possession—the knife identified as prosecution exhibit 6. He did not recall where he had obtained it but he had owned it for approximately eight or nine years. He denied that he had taken it from VIP Massage.
Defendant denied that he had entered any of the carts or had slit their tarp covers. He similarly denied that he pried open any cash drawers at the Mall.
PROCEDURAL BACKGROUND
Defendant was charged by information with three felony counts, namely, second degree commercial burglary (§ 459), grand theft of personal property (§ 487, subd. (a)), and vandalism (§ 594, subd. (b)(1)). The trial commenced on September 25, and testimony was presented in three days. The jury returned verdicts finding defendant guilty on all three counts and found true the allegation that the vandalism charged in count 3 resulted in damage of $400 or more. On the same day, the court suspended imposition of sentence and granted defendant probation subject to various conditions, including 180 days’ confinement in the county jail. Defendant filed a timely notice of appeal.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions on appeal:
1. The court erred by admitting evidence of the quote received by Niizawa of the cost of replacing tarps vandalized at the Mall; this error was prejudicial because without such evidence, there was insufficient evidence to convict defendant of felony vandalism under section 594, subdivision (b)(1).
2. The court should have stayed the imposition of any sentence for the receiving stolen property conviction under section 654, because that crime and the commercial burglary conviction arose out of the same act or indivisible course of conduct.
II. Error in Admission of Evidence in Support of Vandalism Conviction
A. Background and Contentions
Niizawa testified that the Mall uses Creations as its supplier to provide all replacement items for the carts that the Mall leases, including the carts themselves. She obtained an estimate from Creations that the cost of replacing one tarp (or security curtain) was “about $1,000.” Defense counsel objected to this evidence, arguing that it constituted hearsay, there was an absence of foundation, and there was no foundation for the estimate as a business record.
Defendant argues on appeal that Niizawa did not have any knowledge as to the replacement cost of the tarps and that the estimate was inadmissible hearsay. He contends further that the estimate was not admissible as a business record under Evidence Code section 1271 as a hearsay exception. Furthermore (defendant asserts), since the estimate and Niizawa’s testimony as to what the estimate indicated were the only evidence presented as to the amount of damage caused by the vandalism, the erroneous admission of the evidence was prejudicial.
The Attorney General responds that the challenged evidence was admissible as corroboration of Niizawa’s testimony concerning the replacement cost of the tarps. He responds further that the estimate was also admissible as a business record. Finally, the Attorney General asserts that even if the court erred by admitting the evidence, such error was harmless because it was not reasonably probable that the jury, in the absence of the challenged evidence, would have found that the vandalism caused damage of less than $400.
B. Existence of Error
Hearsay is, of course, defined as “evidence of a statement that was made other than by a witness, while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible except as provided by law. (Evid. Code, § 1200, subd. (b).)
Here, considering each of the elements of hearsay in the context of the challenged estimate, it is clear that the estimate was hearsay under Evidence Code section 1200, subdivision (a). It was a “statement.” (See Evid. Code, § 225: “ ‘Statement’ means (a) oral or written verbal expression . . . .”) It was obviously one “made other than by a witness while testifying at the hearing.” And it is plain that the estimate was offered to prove the truth of the matter stated, i.e., that the replacement cost of one tarp was approximately $1,000.
The law is clear that “[s]ince invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or that the charges were reasonable. [Citations.]” (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 42-43 (PG&E).) Similarly, a statement of repairs is inadmissible hearsay. (Menefee v. Raisch Imp. Co. (1926) 78 Cal.App. 785, 789; see also Woolridge v. J.F.L. Electric, Inc. (2002) 96 Cal.App.4th Supp. 52, 56 [trial court sustained hearsay objection to car owner’s testimony as to cost of repair that was based on third party estimate]; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 414 [expert not permitted to describe substance of hearsay repair estimate on which he relied].)
Niizawa’s testimony as a representative of the Mall concerning the estimate she received from Creations constituted inadmissible hearsay. (See Kitchel v. Acree (1963) 216 Cal.App.2d 119, 125 [testimony of homeowner concerning cost to repair defective work was based upon inadmissible hearsay from plastering contractor]; Garfinkle v. Montgomery (1952) 113 Cal.App.2d 149, 158-159 [trial court properly excluded lessor’s damage testimony based on repair estimate that was “pure hearsay”].) Further, we reject the Attorney General’s argument that the Creations estimate was admissible as corroborative evidence of Niizawa’s testimony. (PG&E, supra, 69 Cal.2d at p. 43 [invoices and repair receipts that are inadmissible hearsay “may be admitted for the limited purpose of corroborating” party’s testimony that party incurred liability for such repairs].) The estimate did not corroborate any testimony by Niizawa. Any conclusion to the contrary would allow a witness to testify to improper hearsay simply by invoking the phrase “corroboration,” regardless of whether the witness herself offered any testimony of her own knowledge that was supposedly being corroborated by the hearsay.
Moreover, contrary to the Attorney General’s claim, the Creations estimate was not admissible as a business record. In order to qualify as a business record, the document sought to be admitted under that exception to the hearsay rule must satisfy the following: “(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1271.)
Here, the Creations estimate bore none of the earmarks of a business record. There was no testimony that (a) the estimate had been prepared “in the regular course of a business,” or (b) it had been created “at or near the time of the act, condition, or event.” (Evid. Code, § 1271, subds. (a), (b).) Further, Niizawa—who had no affiliation with Creations—was not qualified to, and did not, testify as to the estimate’s identity or mode of creation. (Evid. Code, § 1271, subd. (c).) And Niizawa offered no testimony supportive of the trustworthiness of the document by identifying “sources of information and method and time of preparation.” (Evid. Code, § 1271, subd. (d).) Since the Creations estimate was hearsay and was not admissible as a business record, the court erred in admitting the document and Niizawa’s testimony as to its contents over the objection of defense counsel. (See Gee v. Timineri (1967) 248 Cal.App.2d 139, 145-146 [plaintiff’s claim of an $11,000 accounts receivable was based on inadmissible hearsay, namely, a financial statement of bookkeeper and accountant, which was not business record due to lack of foundation].)
C. Whether Error Was Prejudicial
Defendant argues that the erroneous admission of the Creations estimate was prejudicial because absent that evidence, there was no basis upon which the jury could have concluded that the vandalism charged in count 3 involved property damage of at least $400 as required under section 594, subdivision (b)(1). Accordingly (he argues), the evidence supports a conviction of misdemeanor vandalism under section 594, subdivision (b)(2)(A). The Attorney General responds that any error was harmless because it is not reasonably probable that a jury would have found the property damage to have been less than $400, had the Creations estimate been excluded.
“Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys. . . .” (§ 594, subd. (a).) “If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), . . .” (§ 594, subd. (b)(1).)
“If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.” (§ 594, subd. (b)(2)(A).)
Aside from the improperly admitted Creations estimate and Niizawa’s testimony concerning it, there was nothing in the record describing the value of the individual tarps for the carts or the cost of replacing the torn tarps. Furthermore, this is not an instance in which the property damage involved is of a type that jurors could apply their “common knowledge and experience” to assess the amount of damage. (Ferrari v. Mambretti (1943) 58 Cal.App.2d 318, 327.) Accordingly, since “mere speculation cannot support a conviction” (People v. Marshall (1997) 15 Cal.4th 1, 35), we must conclude that there was insufficient evidence—excluding the erroneously admitted Creations estimate—to support a conviction under section 594, subdivision (b)(1). Therefore, under the Watson standard, we conclude the conviction cannot stand because “it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred.” (People v. Breverman (1998) 19 Cal.4th 142, 178.) We will therefore modify the judgment to reflect a conviction of misdemeanor vandalism under section 594, subdivision (b)(2)(A).
People v. Watson (1956) 46 Cal.2d 818.
III. Whether Sentence Violated Section 654
Defendant argues that the court should have stayed punishment for the conviction of receiving stolen property (count 2). He asserts that this crime arose out of the same act, or an indivisible course of conduct, as the commercial burglary count and that therefore sentencing on the count 2 conviction should be stayed. We reject defendant’s claim as being premature.
Section 654 provides: “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 . . . .” The statute thus “precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The purpose of section 654 “is . . . to ensure that punishment is commensurate with a defendant’s criminal culpability. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
The court in this instance suspended the imposition of defendant’s sentence and granted probation. Accordingly, application of section 654 is not presently at issue. “Because sentence was not imposed . . ., there is no double punishment issue. The section 654 issue should be presented to a court upon any future attempt to impose a double punishment . . . in the event of a probation violation.” (People v. Wittig (1984) 158 Cal.App.3d 124, 137; see also People v. Lofink (1988) 206 Cal.App.3d 161, 168; People v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240: “Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of Penal Code section 654.”) Accordingly, the question of whether section 654 bars punishment for both the commercial burglary and receiving stolen property counts is an issue for consideration in the first instance by the trial court if there is a violation of probation and the imposition of a sentence at a future time.
DISPOSITION
The judgment is modified to reflect a conviction of misdemeanor vandalism in violation of Penal Code section 594, subdivision (b)(2)(A). As so modified, the judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.