Opinion
B186620
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. MAURICE WILLIAMS, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Maurice Williams, of one count of grand theft. He appeals his conviction claiming the trial court erred in admitting evidence his codefendant had threatened a key prosecution witness and further erred in disallowing evidence contradicting the victims description of her stolen purse. In addition, appellant argues the trial court abused its discretion in refusing to reduce the "wobbler" offense to a misdemeanor and further erred by imposing restitution and parole revocation fines. The People concede the trial court imposed the parole revocation fine in error. We agree the parole revocation fine was improperly imposed because the court suspended imposition of sentence and instead placed appellant on formal probation. We will thus modify the judgment to strike the parole revocation fine, and as so modified, we affirm.
FACTS AND PROCEEDINGS BELOW
Prosecution Evidence:
Elia Welti went to a yoga class at the L.A. Fitness gym in Long Beach between 8:30 and 9:00 a.m. on April 12, 2005. She parked her silver 2001 E320 Mercedes close to the entrance of the gym, right next to the designated handicap parking spot. She opened the trunk lid and placed her black purse and black briefcase inside. She closed the trunk lid and pushed the button on the remote control key to lock the car. As she was placing the items in the trunk Welti noticed appellant exit the gym. She recognized appellant as a trainer from the Cerritos L.A. Fitness gym.
Tamara Clark worked at the front desk of the L.A. Fitness gym in Long Beach as the receptionist. Her job was to answer the phones and check members in as they entered. From her position at the front desk Clark could easily see the parking lot through the glass doors. Her car was parked in the handicap spot as she had recently suffered a collapsed lung. At some point, Clark noticed the trunk of the silver Mercedes parked next to her car was open. Clark did not know who owned the car.
Around 9:50 a.m. appellant entered the gym and approached Edwin Barnes, a fellow trainer at the gym. Appellant told Barnes he needed help with his car. Barnes was in the midst of a training session. Barnes excused himself and accompanied appellant to the parking lot.
Appellant and Barnes walked past the Mercedes to the next car and stayed there for a few seconds. Then Clark noticed appellant remove something from the trunk of the Mercedes. The item was black and could have been either a large purse or a briefcase. A moment later Barnes removed a black object from the trunk of the Mercedes as well. This object appeared to be a briefcase. Barnes closed the trunk lid and the two men walked away. Barnes returned to the gym a few minutes later.
An hour later appellant returned to the gym, spoke to Barnes for a few moments, and left.
Stephanie Pinault was working that morning as the Kids Club director at the L.A. Fitness gym. She had a view of the parking lot through the glass windows and doors. She noticed appellant and Barnes standing at the rear drivers side of a silver Mercedes talking and looking around. At some point she noticed the trunk of the silver Mercedes was open. Pinault assumed Barnes had gotten a new car and was showing it to appellant.
When Pinault looked back out to the parking lot she saw appellant standing next to the car holding a dark-colored, briefcase-shaped bag in his hand. Pinault was sure it was not a gym bag appellant held in his hand. This bag was instead rigid looking and rectangular. When Pinault looked out again, the cars trunk lid was closed and appellant was still holding the bag. When the two men finished talking Barnes returned to the gym. Pinault did not see anything in Barnes hands when he came back to the gym. Pinault watched appellant get into his dark compact car and drive off. Pinault said she was familiar with appellants car and she was certain he drove a dark compact car.
Around 10:45 a.m., Clark received a telephone call from Welti. Welti sounded upset and in a panic. Welti said she had just returned home and discovered her purse and briefcase were missing. Welti explained she remembered placing her purse and briefcase into the trunk of her car before going to her yoga class. She remembered closing the car but was in such a rush to get to her class she could not remember whether she had locked it.
Welti described her purse as a black, eight by nine inch, handbag with a picture of Marilyn Monroe on both sides. Welti sold these bags in her beauty shop and brought duplicates to the preliminary hearing and to the trial. Inside her bag, Welti had $500 in cash she had just paid herself as her weekly salary, her drivers license and other important documents, including her green card. Welti was a resident alien from Mexico. Welti testified it cost her about $300 to replace her green card. Welti was also a real estate agent. She had numerous reports and papers relating to her real estate business in her black briefcase.
Clark asked Welti where she had parked and whether she had been driving a silver Mercedes. When Welti confirmed this information, Clark realized she had witnessed the thefts. Clark told Welti she would call the police and directed Welti to drive back to the gym.
Clark called the police. Clark then spoke to the L.A. Fitness gym manager. She told him she had seen appellant and Barnes take items from the trunk of a car parked outside the gym. Clark told him about Weltis telephone call and informed him she had already called the police. Clark asked the manager not to tell Barnes she was the one who saw him take the items. A minute or so later Barnes came over to the receptionist desk and told Clark, "What did you see me do?" Barnes told Clark, "You didnt see me do a M.F.ing thing." Clark was intimidated by Barnes. She assured Barnes she "didnt remember seeing [him] do anything."
After Clark testified to these statements the court interrupted her testimony to provide the jury with the following limiting instruction: "These alleged statements by Mr. Barnes are admitted only to explain the conduct of the witness after those statements were made. Theyre not used against the defendant here on trial. Its just to explain what the witness did or didnt do after the statement."
When the police officers were about to enter the gym, Barnes walked over to Clarks desk. He told her it would be best if she did not remember anything. Clark agreed not to remember anything.
Barnes stood near Clark as police officers spoke to her. Clark told them she did not remember anything. Officer Hodge left his business card and told Clark to call him if she remembered anything. When she returned home from work Clark called and left a message for Officer Hodge. Officer Hodge interviewed Clark two days later on April 14, 2005 at the L.A. Fitness gym. During this second interview Clark told Officer Hodge everything she had seen.
Defense Evidence:
Appellant presented several witnesses to testify to his good character. These witnesses testified appellant was an upstanding citizen, a good husband and father, and an active and involved member of his familys church for over 30 years. Each witness attested to appellants good character, honesty, compassion and trustworthiness. One of his witnesses had been a coworker at the gym. This witness recounted a story of how just the day before the alleged thefts in this case appellant had found a wallet containing cash near the free weight racks and how appellant had promptly turned it in to the front desk.
Appellant testified in his own defense. Appellant was a fitness director. He had been working at L.A. Fitness or other gyms associated with it for approximately eight years. In this capacity appellant provided personal training and nutritional guidance to members who contracted for these additional services. He was also in charge of recruiting and training staff.
Appellant normally worked out of the Cerritos branch. However, it was then under renovation and on April 12, 2005, he was assigned to the Long Beach L.A. Fitness gym. He arrived around 8:45 a.m. to train with one of his clients. Appellant had just purchased a new grey B.M.W. Barnes told him he wanted to go out to the parking lot to see appellants new car.
They walked out to the parking lot to appellants car. Appellant noticed the trunk of a silver Mercedes was open. Appellant mentioned it to Barnes and Barnes closed the trunk lid. Appellants car was parked about 10 to 15 feet away from the silver Mercedes. He opened the trunk of his car and placed his blue gym bag into the trunk. He retrieved nutritional information he wanted to give to his client before closing his trunk lid.
Appellant drove off. However, when he was about a block or so away appellant realized he had forgotten his squat pad at the gym. He returned to the gym to retrieve it. On his way out appellant spoke to a client. He looked back inside the gym and noticed police were at the front desk talking to Barnes. He saw Barnes point in his direction. After the police left he asked Barnes why he had pointed at him. Barnes replied, "Dont worry about anything." Barnes explained the officer had only asked him who he was with when he left the gym earlier.
A few days later on April 15, 2005 appellant went to Las Vegas for a bachelor party. Appellant testified the trip had been planned for some time. Appellant stated he had received verbal authorization from Pauw Lee, one of his supervisors, to take the time off. He said it was unnecessary for him to follow the normal procedure of requesting time off in writing, both because he had such a good relationship with his supervisors, and because he was a salaried employee and salaried employees did not need to request time off in writing.
While in Las Vegas appellants son called him and informed him Officer Hodge was then at the house and wanted to speak with him. Appellant spoke with the officer directly. Officer Hodge informed appellant he was at his house because his house alarm had been triggered. Appellant replied he did not have an alarm on his house. Officer Hodge then said, "Let me stop playing games with you." "You know the real reason why Im here at your house." Appellant replied he did not know. Officer Hodge said everything would "go away" if appellant would just return all the items taken at the Long Beach L.A. Fitness gym. Appellant told the officer he had no idea what the officer was talking about. Officer Hodge told appellant, "Okay, we can do it your way or our way." Then Officer Hodge threatened to take appellants son away.
While in Las Vegas appellant received a telephone call from his supervisor informing him he had been fired. Appellant denied he had been fired for failing to show up for work as scheduled because he was evading arrest.
Appellant returned from Las Vegas on Monday April 18, 2005. The next day he and his wife went to the police station. Officer Hodge immediately asked appellant "Wheres the green card?" Appellant said he did not know what the officer was talking about. Officer Hodge used excessive force while placing handcuffs on appellant. When appellant resisted the officer threw him on the bench and/or threw him against the wall. Appellant continued to protest his innocence. Officer Hodge told appellant he "had him on videotape." Appellant said he was glad because a videotape would prove "they had the wrong person" and prove he was innocent. The officer later admitted there was no video tape of the thefts.
Prosecution Rebuttal Evidence:
Pauw Lee held the position of Vice President of L.A. Fitness. Appellant did not report to work as scheduled on either Friday April 15 or Monday April 18, 2005. Appellant had not arranged with him to take the time off. Lee called and left a message on appellants cell phone. Appellant did not call him back until the following week. Lee testified if appellant wanted to take time off appellant was required to use the system set up for such purpose.
Prince Jones is a district vice president of L.A. Fitness. He did not recall appellant asking him for time off in April 2005.
Christy Pham is a legal assistant in the human resources department of L.A. Fitness. She is also the custodian of employee payroll records. According to those records, appellant was not a salaried employee but instead held a nonexempt position. That meant appellant was an employee who was paid by the hour, and when applicable, was entitled to overtime and bonus pay. Appellants records showed he worked varying hours and that he accrued overtime pay on an irregular basis.
Lance Yates was the general manager of the L.A. Fitness in Cerritos. He had been appellants supervisor for several years. In his opinion appellant was dishonest and untrustworthy. Because appellant misrepresented to clients the fee charged for personal trainer services could cover more than one person, L.A. Fitness had had to make numerous refunds when members discovered this was not true. In addition, Yates learned appellant had been providing personal training services "off the clock" for his own personal gain.
Defense Surrebuttal:
Giovanni Gonzales Sanguily was appellants coworker at L.A. Fitness. Sanguily testified Lance Yates, the general manager at the Cerritos club, was a controlling, unprofessional, nasty manager who suffered from a Napoleon complex. Sanguily opined Yates only had a low opinion of appellant because he was resentful of appellants popularity at the club.
An information charged appellant with one count of grand theft of personal property. The jury convicted appellant as charged. The court suspended imposition of sentence and placed appellant on formal probation for three years. The trial court ordered appellant to perform 90 days of Caltrans service and, among other fines, imposed a restitution fine of $200 and a parole revocation fine of $ 200. Appellant appeals from the judgment of conviction.
Penal Code section 487, subdivision (a).
The information jointly charged codefendant Edwin Barnes with grand theft in count II. Count I of the information alleged Barnes dissuaded a witness in violation of Penal Code section 136.1, subdivision (c)(1) and Count III alleged Barnes committed petty theft with a prior in violation of Penal Code section 666. Barnes pled guilty to the charges before trial and he is not a party to this appeal.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE APPELLANTS CODEFENDANT HAD THREATENED A KEY PROSECUTION WITNESS.
Prior to trial appellant sought to exclude evidence Barnes had attempted to dissuade Clark from talking to the police about the thefts she had witnessed. Appellant asserted he had nothing to do with the threats his codefendant Barnes had admittedly made, as evidenced by his guilty plea. Appellant argued evidence of Barnes statements should not be admissible against him because they lacked relevance, were more prejudicial than probative under Evidence Code section 352 and constituted inadmissible hearsay.
The prosecutor agreed there was no evidence to show the threats were appellants idea or even that appellant had consented to Barnes act in threatening the witness. However, the prosecutor argued, Barnes statements were not hearsay because they were not being offered for their truth. The prosecutor stated his intent was to offer Barnes statements for the purpose of explaining Clarks conduct, namely, to explain why she changed her story and delayed reporting the crimes to the police.
The court denied appellants request to exclude evidence of Barnes statements. The court commented: "It is not hearsay. There will be a limiting instruction. It is material to the prosecutions case in explaining the delays and why the [] report wasnt made sooner."
Accordingly, Clark testified that before the police arrived at L.A. Fitness to take her statement Barnes approached her and said, "You didnt see me do a M.F.ing thing." Barnes warned Clark it would be best if she did not remember anything when speaking to the police. After this testimony the court instructed the jury: "These alleged statements by Mr. Barnes are admitted only to explain the conduct of the witness after those statements were made. Theyre not used against the defendant here on the trial. Its just to explain what the witness did or didnt do after the statements."
Appellant acknowledges the evidence of Barnes threats was admitted for a nonhearsay purpose. He also acknowledges out-of-court statements offered, not for the truth of the matter stated, but to explain a witnesss conduct, or to demonstrate the affect of the statement on the witness who heard it, are not made inadmissible by the hearsay rule. However, he claims, because Clarks conduct in delaying in reporting the crimes was never an issue in the case, the evidence was irrelevant as a matter of law and thus inadmissible. Appellant argues the trial court had no discretion to admit irrelevant evidence, and because the evidence was particularly inflammatory, its admission constituted a violation of state and federal due process.
Citing People v. Patton (1976) 63 Cal.App.3d 211, 219.
Citing Evidence Code section 350; People v. Crittenden (1994) 9 Cal.4th 83, 132; People v. Babbitt (1988) 45 Cal.3d 660, 681.
Citing Estelle v. McGuire (1991) 502 U.S. 62, 70.
In support of his argument appellant relies on the decision in People v. Scalzi. In Scalzi, police entered a residence to execute arrest and search warrants for a Mr. and Mrs. McDaniel and their residence. One of the McDaniels friends, the defendant, John Scalzi, was sitting at the dining room table when police arrived. Methamphetamine, weighing scales and other drug paraphernalia were in plain view on the table. Police detained Scalzi. As police searched the house, one of the officers answered several telephone calls. One unknown female caller asked for John and inquired whether he had "taken care of business." The caller wanted to know whether John "had gotten it bagged up."
People v. Scalzi (1981) 126 Cal.App.3d 901.
People v. Scalzi, supra, 126 Cal.App.3d 901, 905.
Over objection, the trial court admitted evidence of this phone conversation, allegedly not for its truth, but for the nonhearsay purpose of explaining the officers subsequent actions, namely the officers decision to arrest and charge Scalzi with conspiracy to sell methamphetamine. However, in closing argument the prosecutor urged the jury to find Scalzi guilty based on the evidence he was at the residence for the purpose of "bagging it up."
People v. Scalzi, supra, 126 Cal.App.3d 901, 905.
People v. Scalzi, supra, 126 Cal.App.3d 901, 908.
The jury convicted Scalzi as charged but the appellate court reversed. The court found the statement was not admissible for the stated nonhearsay purpose because the officers state of mind was not at issue. The court noted anything the officer did in response to the statement was irrelevant as having no tendency to prove or disprove any material issue in the case. To emphasize the point, the appellate court noted the jury was even instructed not to consider the facts of the arrest, the charges or the trial as evidence of the defendants guilt.
People v. Scalzi, supra, 126 Cal.App.3d 901, 906-907.
In this case, by contrast, the evidence was relevant to a fact at issue in the case. It was admissible for the nonhearsay purpose of explaining the witnesss conduct which in turn had a direct bearing on her credibility as a witness. The credibility of witnesses, especially key witnesses, is always a relevant matter at issue in every case. "Relevant evidence" includes "evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
In the present case, the evidence was relevant to prove Clark feared retaliation from Barnes because of his threats, Clark acted in conformity with this fear, and denied seeing or remembering any theft occurring at the L.A. Fitness club when she first spoke to the police. The evidence of the effect of the statements on Clark, in turn, had significant probative value on the issue whether her changed and delayed report to the police two days after the crimes was believable. Because this evidence had a direct bearing on a key witnesss credibility, it was relevant, probative and admissible on that ground.
See, e.g., People v. Burgener (2003) 29 Cal.4th 833, 869 [evidence witness feared retaliation for testifying was relevant to assess the witnesss credibility]; People v. Malone (1988) 47 Cal.3d 1, 30 [same]; see also, People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 [evidence a witness had been threatened may be admissible despite the absence of evidence directly linking the threat to the defendant].
Unlike what occurred in Scalzi, the extrajudicial statements were neither offered, nor improperly used, by the prosecution for their truth. Indeed, and given the content of the statements—Clark had not seen Barnes do anything and it was in Clarks best interest to remember nothing when talking to the police—there was little potential for any juror to use the statements for any improper hearsay purpose.
Appellant acknowledges there are many cases in which the credibility of a witness may tend to prove or disprove disputed facts of consequence to the disposition of a case. However, he counters, it was never disputed Barnes threatened Clark, and it was never disputed Clark had changed her stories and delayed reporting the crimes to the police. Thus, at most, appellant argues, the evidence was relevant and probative of her credibility regarding only undisputed and inconsequential facts.
At worse, he argues the evidence of threats constituted improper character evidence under Evidence Code section 787. This might be true if the evidence was used to either impeach or support Barnes testimony. Evidence Code section 787 generally restricts use of specific instances of a witnesss past conduct to impeach or bolster the witnesss testimony. However, Proposition 8s "Truth-in-Evidence" amendment to the state constitution eliminated this restriction in criminal cases. (See discussion in People v. Wheeler (1992) 4 Cal.4th 284 [the restriction in criminal cases has been eliminated, nevertheless evidence of a misdemeanor conviction for impeachment cannot be admitted over a hearsay objection]; see also, People v. Harris (1989) 47 Cal.3d 1047, 1080-1082 [evidence of an informers prior reliability is admissible to support or attack the witnesss credibility]; People v. Mickle (1991) 54 Cal.3d 140, 168 [a jail house informants threats against witnesses in his own case implied dishonesty and moral laxity and were thus admissible for impeachment].
In the present case, Evidence Code section 787 is not directly applicable in any event because no one offered evidence of specific instances of Clarks conduct to either impeach or support her testimony.
While the underlying facts may not have been in dispute, it was reasonable for the trial court to expect appellant to use those facts to undermine Clarks credibility before the jury. Indeed, this is precisely what appellant did. In his opening statement appellant warned the jurors to be skeptical of Clarks testimony because "her testimony changed on three different occasions just since the course of this trial." On cross-examination appellant made a point of questioning Clark regarding her various versions of the events, the fact she had changed her story, and the fact she had delayed in reporting the crimes to the police. Appellant also attacked Clarks credibility in his closing argument. He told the jury Clark "had three different stories. First on April 12th she had one thing to say, and she said nothing occurred. Then she came back on April 14th and she stated . . . [appellant] had taken the purse. Then she came back again on June 27th for the preliminary hearing, and it was something more like a briefcase."
The prosecution was entitled to counter the defenses expected attempts to undermine Clarks credibility by presenting evidence to explain Clark gave inconsistent versions of the events because she initially feared retaliation from Barnes. To eliminate any negative impact on appellants case the trial court provided a limiting instruction to prevent the jury from misusing this evidence. This instruction directed the jury evidence Barnes had threatened Clark was not attributed to appellant, could not be used against him in this trial, and could only be used to explain Clarks conduct.
Because the evidence was both relevant and material we find it was within the trial courts discretion to admit it. Accordingly, we find no error.
Evidence Code section 352; People v. Green (1980) 27 Cal.3d 1, 19 [a trial court has wide discretion when ruling on the relevance of threat evidence and its ruling is reviewed for abuse]; see also, People v. Sanders (1995) 11 Cal.4th 475, 512 [evidentiary rulings are reviewed for abuse of discretion].
II. ANY ERROR IN PROHIBITING APPELLANT FROM IMPEACHING WELTIS TRIAL TESTIMONY WITH THE COURTS DESCRIPTION OF THE STOLEN PURSE AT THE PRELIMINARY HEARING WAS HARMLESS.
At the preliminary hearing Welti brought with her a purse she testified was "exactly like" the purse stolen from the trunk of her car. The judge at the preliminary hearing described the purse as follows: "For the record, appears to be a clutch purse approximately nine inches tall by one inch, nine inches tall one foot wide and approximately three inches." The prosecutor added the purse had images of Marilyn Monroe. No one described the color of the purse. Welti did not raise any objection to or add to anyones description of the purse.
For the trial Welti again brought along a purse she claimed was "exactly like" the one stolen from the trunk of her car and "exactly like" the one she brought with her to the preliminary hearing. As Welti showed the jury the purse defense counsel blurted out, "Its a different purse than last time." The prosecutor described the purse as follows: "For the record, the witness is holding a black-colored ladys handbag with a picture of Marilyn Monroe on it wearing a white dress, and there is a white stripe that goes all the way around. The image of Marilyn Monroe is actually on both sides of the purse." The court added its observations the size of the purse was about eight inches by five inches and it had a concave top.
Because this purse was obviously not a "clutch" purse because it had a strap, appellant sought to impeach Welti with the judges description of the purse from the preliminary hearing as a "clutch." Appellant asked Welti to read the relevant portion of the preliminary hearing transcript "about a clutch purse." Welti responded, "What is a clutch?"
The prosecutor asked to approach the bench. At a side bar conference defense counsel explained she wanted to impeach Weltis testimony with the description the judge gave at the preliminary hearing that the purse was a "clutch." The court ruled it was improper to impeach Weltis testimony with someone elses statement.
On redirect examination, Welti testified she did not know what the term "clutch purse" meant. She stated she had never described the purse as a "clutch purse" because she was not familiar with the word. Welti testified it was the preliminary hearing judge, and not she, who had mentioned the word "clutch." The prosecutor then asked the trial court to take judicial notice that, depending on ones vantage point, the body of the purse could eclipse the handbags strap. The court declined to take judicial notice, stating, "The jurors are there, and they can make a decision."
During the defense case appellant sought permission to simply read the preliminary hearing courts description of the purse as a "clutch" into the record. The court was inclined to allow it. However, the court and counsel could not identify a legal theory to admit the statement. The prosecutor opined it was unnecessary in any event because the subject matter had already been adequately covered. Ultimately, the trial court did not permit appellant to read the preliminary hearing transcript into the record, finding it was not testimony and it was not something which the court could properly judicially notice.
Appellant then testified he saw the purse Welti brought with her to the preliminary hearing. He said it was a clutch purse, and not the handbag she brought to the trial with a strap. Appellant testified the purse was also different in that it was beige in color, and not black.
Based on this discrepancy defense counsel told the jury in closing argument not to believe anything was taken from Welti. Counsel told the jury "So how do we know there were any items [in her cars trunk] at all? One time she says its a beige clutch purse. The next time she says a black strap purse. Who knows what it is or if there really was anything in that car at all."
On appeal, appellant argues it was prejudicial error not to admit the preliminary hearing judges description of the stolen purse as a "clutch." He asserts this evidence should have been admitted because it would have permitted him to argue if Welti was lying about the purse she was likely lying about the $500 in cash she allegedly had in the stolen purse as well. Appellant points out impeachment of the victim was crucial because, but for her unsubstantiated statement she had this much cash in her purse, the crime would only have been a misdemeanor.
Appellant makes this argument although the evidence was undisputed it cost Welti about $300 to replace her green card. Also, a reasonable juror could have found the purse and briefcase likely had a combined value of at least $100 even empty.
Appellant asserts the trial court could have properly taken judicial notice of the judges statements in the preliminary hearing transcript. He notes courts may take judicial notice of "facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." This provision clearly does not apply because the stolen purses description was very much a disputed matter and the fact the judge made the statement at the preliminary hearing would not have been enough.
Evidence Code section 452, subdivision (h).
Alternatively, appellant suggests the court could have taken judicial notice of the preliminary hearing transcript as a record of a court of this state. Judicial notice of the record from the preliminary hearing would not have assisted appellant. He needed to have the content of the record judicially noticed for its truth, namely, the victim had presented a purse entirely different than the one she claimed at trial had been stolen.
Evidence Code section 452, subdivision (d).
While a court may take judicial notice of court records and documents in court records, it may not take judicial notice of the truth of all matters asserted in those documents. "`Judicial notice may be taken of the records of a court of this state [citations]. This is not to say, however, that judicial notice may be taken of the truth of facts asserted in every document in a court record. [Citation.] Judicial notice of findings of fact does not mean those findings are true, but simply that they were made. [Citations.] Thus, while a court can take judicial notice that a court made a particular ruling, it cannot take judicial notice of the truth of a factual finding made in another action. [Citation.]" Because appellant needed the preliminary hearing judges description of the purse admitted for its truth, judicial notice of the record alone would have been inadequate.
People v. Moore (1997) 59 Cal.App.4th 168, 178.
Taking another tack, appellant asserts the preliminary hearing judges description of the purse as a "clutch" was admissible and relevant to impeach Weltis conduct. He points out she acquiesced in the description by remaining silent and by not objecting. Because Weltis conduct at the preliminary hearing was inconsistent and entirely incompatible with her trial testimony, appellant argues, evidence of her prior conduct when hearing the "clutch purse" description was proper impeachment evidence. He points out Evidence Code section 769 authorizes evidence of conduct for impeachment. This section states, "In examining a witness concerning a statement or other conduct by him [or her] that is inconsistent with any part of his [or her] testimony at the hearing, it is not necessary to disclose to him [or her] any information concerning the statement or other conduct." "Conduct" includes verbal and nonverbal active and passive behavior. "Statements" can also include "nonverbal conduct of a person intended by him [or her] as a substitute for oral or written verbal expression."
Citing Evidence Code section 769.
Assuming these Evidence Code sections apply, and even assuming the trial court should have allowed appellant to impeach Weltis testimony directly with the judges description from the preliminary hearing based on Weltis silence when hearing the description, we conclude it would not have made any difference in either the conduct or the outcome of the trial.
Had she been challenged directly, Welti would have testified as she did in this trial. She would have said she was unfamiliar with the word "clutch," did not know what a "clutch purse" was, and for this reason made no effort to correct the preliminary hearing judge when he gave this description.
In addition, the jury was made more than sufficiently aware—through both properly admitted evidence and improper suggestions—there were disagreements and inconsistencies regarding the purse Welti claimed had been stolen. For example, in the middle of Weltis testimony defense counsel blurted out, "It is a different purse than last time." Through Weltis testimony the prosecutor brought out the fact the purse had been described as a "clutch" at the preliminary hearing. Appellant testified the purse Welti brought to the trial was different because it had straps, was black and was not a clutch purse. Based on all this discussion of the purse allegedly stolen from Welti defense counsel was able to argue Welti had likely fabricated her entire story. Defense counsel was also able to argue if Welti could not even identify the purse allegedly stolen, she most likely also fabricated the story of having $500 in cash in the mystery purse.
Because the jury was amply apprised of the proposed impeachment evidence presented through alternative methods, presenting the preliminary hearing description through direct impeachment could not have altered the effect of the evidence or the result of the trial. Accordingly, if it was error to preclude its use as direct impeachment, it was surely harmless.
III. APPELLANT HAS FAILED TO SHOW THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING HIS REQUEST TO REDUCE THE OFFENSE TO A MISDEMEANOR.
At sentencing appellant twice orally requested the court to reduce the "wobbler" grand theft offense to a misdemeanor under the authority of Penal Code section 17, subdivision (b). Defense counsel reminded the court appellant had no criminal record and, in addition, had several witnesses who would testify to appellants good character.
A conviction of grand theft under Penal Code section 487, subdivision (a) is a "wobbler" offense which the court in its discretion can sentence as either a felony or a misdemeanor. (Pen. Code, § 489, subd. (b); In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.)
Penal Code section 17, subdivision (b) states "when a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
"(1) After a judgment imposing a punishment other than imprisonment in the state prison.
"(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. . . . "
The prosecutor suggested jail time be imposed in addition to the initially recommended Caltrans community service.
At various points the trial court expressed the view appellant had premeditated the crime and in fact had been the instigator of the crime. The trial court implicitly denied appellants request to reduce the "wobbler" offense to a misdemeanor. The court stated, "I did consider jail time in the case. But Mr. Williams has no prior record, and considering the effect of jail time on the family, Mr. Williams, Ill give you a chance. If you come back on a violation, particularly any kind of theft, dont expect probation, expect prison time."
Appellant contends the courts refusal to reduce the grand theft offense to a misdemeanor was an abuse of discretion.
When a court exercises its discretion in deciding whether to reduce a "wobbler" offense to a misdemeanor under Penal Code section 17, subdivision (b) the court must consider factors relevant to similar sentencing decisions. These factors include, "`the nature and circumstances of the offense, the defendants appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial."
People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, quoting People v. Morales (1967) 252 Cal.App.2d 537, 547.
The burden is on the defendant to show the sentencing decision was irrational or arbitrary. "`In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (People v. Superior Court (Du) [(1992)] 5 Cal.App.4th [822] at p. 831.) Concomitantly, `[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] (People v. Preyer (1985) 164 Cal.App.3d 568, 573.)"
People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 977.
People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 978.
Appellant has failed to show the courts sentencing choice was either arbitrary or capricious. The record evidence supports the trial courts view appellant instigated the crime. According to Welti, appellant saw her place her purse and briefcase in her trunk. Appellant then enlisted Barnes to participate with him in the theft.
Appellants attitude toward the offense and his demeanor at trial also support the courts decision. Appellant denied culpability despite the eyewitness testimony from coworkers who knew appellant well. Appellant suggested much of the evidence against him had been fabricated. Appellant attempted to evoke unwarranted sympathy from the jury members. He claimed the investigating officer had threatened to take his son away and later used excessive force when arresting him by throwing him on the bench or against the wall when handcuffing him.
There was also evidence appellant had been dishonest in the past. Despite numerous witnesses attesting to his good character, there was evidence appellant had made misrepresentations to numerous clients which damaged his employer. There was also evidence he had deprived his employer of membership fees by working "off the clock" for his own personal gain.
Based on this evidence the court chose not to reduce the offense to a misdemeanor. Although several of the relevant factors suggested harsher punishment, the court elected to show leniency by ordering no jail time. We find appellant has failed to demonstrate the trial court abused its discretion by failing to mitigate the penal consequences of his conviction even further.
IV. APPELLANTS SENTENCE MUST BE MODIFIED TO STRIKE THE PAROLE REVOCATION FINE.
At sentencing, the trial court suspended "the proceedings" and placed appellant on three years formal probation. The court imposed numerous fines, including a $200 restitution fine and a $200 parole revocation fine. The court stayed the parole revocation fine "unless in the future there is a commitment for a violation."
Appellant contends neither a restitution nor a parole revocation fine may be imposed unless a defendants sentence includes a period of confinement.
Appellant is partially correct. The $200 restitution fine was properly imposed. Under Penal Code section 1202.4 a restitution fine is mandatory "[i]n every case where a person is convicted of a crime" unless the court "finds compelling and extraordinary reasons for not doing so, and states those reason on the record." Appellant offers no authority to the contrary. The decision in People v. Hannah, on which he relies, instead holds when the court suspends execution of a sentence imposed and places a defendant on probation, the defendants sentence does not include a period of parole, and thus a parole revocation fine cannot be imposed.
Penal Code section 1202.4, subdivision (b).
People v. Hannah (1999) 73 Cal.App.4th 270, 274.
Decisions subsequent to the Hannah decision have distinguished between suspension of execution of sentence and suspension of imposition of sentence. In the former situation a parole revocation fine is appropriate because the defendants sentence, although presently suspended, includes a period of confinement and thus the potential for parole. By contrast, when the court suspends imposition of sentence there is no potential for a period of confinement and thus no potential "period of parole." It is in this latter situation, when the court suspends imposition of sentence, as in the case at bar, a parole revocation fine is inapplicable. The People concede the parole revocation fine was imposed in error.
See, e.g., People v. Tye (2000) 83 Cal.App.4th 1398, 1401 ["The conclusion reached by the Hannah court makes sense when probation is granted upon suspension of imposition of sentence, for in that situation the defendant has not been sentenced to a prison term. When, however, as here, a prison sentence, including a period of parole, has been imposed and only the execution has been suspended, we conclude that Penal Code section 1202.45 applies and the restitution fine may properly be imposed."]; People v. Calabrese (2002) 101 Cal.App.4th 79, 86 ["When execution of sentence is suspended, the defendants sentence comes within Penal Code section 1202.45 because, if ultimately executed, the sentence `includes a period of parole which could be revoked."].
Penal Code section 1202.45 provides in pertinent part: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. . . ." (Italics added.)
We agree and accordingly will modify the judgment to strike the parole revocation fine.
DISPOSITION
The judgment is modified to strike the $200 parole revocation fine. As so modified, the judgment is affirmed.
We concur:
PERLUSS, P. J.
WOODS, J.