Opinion
G061881
02-14-2024
THE PEOPLE, Plaintiff and Respondent, v. PAUL DAVID CARTER, Defendant and Appellant.
Matthew C. Tymann, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 21WF3051 Michael F. Murray, Judge. Affirmed.
Matthew C. Tymann, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DELANEY, J.
Defendant appeals after being convicted by a jury of felony vandalism (Pen. Code, § 594) and misdemeanor violation of a protective order (§ 166, subd. (c)(1)). He contends the trial court erred in allowing testimony from a police detective concerning information purportedly gleaned from document based hearsay which the court had previously ruled inadmissible. In addition, relying on People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), he claims the court violated his constitutional due process rights by imposing fines and fees without first determining whether he had the ability to pay them. Alternatively, defendant asserts the court's minutes do not accurately reflect its oral pronouncements regarding fines.
All further statutory references are to the Penal Code unless indicated otherwise.
We find no error. Our review of the record reveals relevant nonhearsay purposes for the rebuttal testimony of the detective challenged by defendant, meaning defendant has not demonstrated an abuse of discretion. As for the fines and fees, assuming arguendo Duenas was correctly decided and its due process framework is applicable in this case, we find no constitutional violation. The extreme factual circumstances that led Duenas to reach its conclusion are simply not present here. Separately, we find no discrepancy between the court's oral pronouncements and its minutes regarding fines. Thus, we affirm the judgment.
FACTS
After a house in which defendant previously lived was vandalized with orange paint, he was arrested and charged with vandalism and violation of a protective order. The matter was tried to a jury, with testimony coming from the victim residents of the property, David C. and Stephanie S., and a detective who investigated the incident, among others.
David C. and Stephanie S. related how they met defendant in 2017 and events that transpired between that time and the night their house was vandalized roughly three years later. The initial contact resulted from defendant responding to an ad they published regarding a room for rent in their home. Defendant claimed to be a student moving from Arizona to go to college without family in the area. David C. and Stephanie S. agreed to rent the room to him.
Defendant moved into the home and within a couple of weeks, David C. and Stephanie S. grew concerned about his behavior. Although they had a no smoking and no drug use agreement, defendant would smoke in the front yard and backyard of the house, and even tried to do so in the house's atrium. Defendant also interjected himself into the personal and social lives of David C. and Stephanie S. when they, for example, hosted friends at their house. When David C. tried to talk with defendant about his behavior, defendant was loud, argumentative and verbally aggressive. He acted similarly toward Stephanie S. Because she was much smaller in stature than defendant, David C. and Stephanie S. were worried about what she described as "loose cannon" behavior. Reinforcing their concern was an occasion when they came home to find defendant on the sidewalk in front of the house with his shirt off screaming "at anything and everything."
David C. and Stephanie S. provided defendant with verbal and written notice of their intent to terminate the rental agreement. Although not required by the agreement, they gave him months of opportunity to find another place to live. Defendant eventually said he would not be leaving, so they began the eviction process.
Approximately eight months after defendant moved into the house, the court granted the eviction and ordered defendant to pay David C. and Stephanie S. about $4,300. David C. and Stephanie S. also sought and obtained a five-year civil restraining order against defendant which, among other things, prohibited him from contacting them and from being within 100 yards of their home.
Three years later, in February 2021, a court issued a criminal protective order to protect David C. and Stephanie S. from defendant. Like the civil restraining order, it included a no contact provision and a prohibition on defendant being within 100 yards of their home.
David C. and Stephanie S. also testified to what took place on the day their home was vandalized in August 2021. Just after midnight one day, Stephanie C. awoke to an alert from a doorbell security camera positioned next to their front door. On video, she observed a person at their front door who was wearing a mask. Recognizing it to be defendant, she was scared. She did not know what to do, but ultimately chose not to wake up David C. because she felt he would be in danger.
When David C. woke that morning, he discovered orange paint on his front door, the front of his house, including some windows, the mailbox, the driveway, landscaping, and three cars parked in front of the house. There was also paint on a brass ornamental turtle defendant brought to the house and used as an ashtray while he lived there. David C. described the paint as being "slobbed" all over, with the only identifiable markings being the letters "PENI" on the garage door.
The prosecutor played two videos captured on the night of the vandalism. The first video, from the doorbell security camera located next to the house's front door, showed a masked person dressed in short sleeves and long pants, and wearing a beanie, spray painting various areas of the house and yard. David C. and Stephanie S. both identified defendant as being the person in the video based on their familiarity with his height, build, movement, and mannerisms. The second video, from a security camera located at a house across the street from David C. and Stephanie S.'s house, showed a white pickup truck driving by on the street, and roughly five minutes later driving in the opposite direction. The truck's passing occurred around the same time as the camera at David C. and Stephanie S.'s house captured the person spray painting.
When asked at trial about any vehicles driven by defendant, David C. said he only saw him drive a silver Cadillac while he lived at the house and a rental truck that he used to collect his things from the house after being evicted. He denied having seen defendant drive a pickup truck.
The prosecution also called as a witness a Huntington Beach police detective who investigated the vandalism. Prior to his testimony, the court held an Evidence Code section 402 hearing to determine the admissibility of testimony from the detective about a white Nissan pickup truck he determined was registered to defendant through use of an electronic police database that draws on California Department of Motor Vehicles (DMV) records. Defense counsel took the position the testimony was inadmissible hearsay. The prosecution unsuccessfully attempted to lay the foundation for a hearsay exception, so the court ruled to exclude the testimony.
On direct examination, the detective provided limited testimony about his investigation. He explained he reviewed the video captured at David C. and Stephanie S.'s house, as well as the surveillance video from the neighbor's house which showed a white pickup truck driving by around the time the vandalism occurred. He also stated he spoke with David C. after the incident and he relayed to the detective that he believed defendant drove an older white pickup truck.
Defense counsel pressed further on cross-examination of the detective. He questioned him about the captured videos, including the white pickup truck, and the lack of recorded interviews. He elicited statements made by David C. during initial interviews the detective conducted. In addition, defense counsel had the detective confirm his written conclusion that defendant was responsible for the vandalism, and he inquired why certain matters were or were not included in the detective's police report as support for that conclusion. His last line of questioning concerned gang related matters and steps not taken by the detective during his investigation. After the detective acknowledged the marking left on the garage door-"PENI"-was a known gang tag, defense counsel asked a series of questions concerning why the detective did not explore gang members and instead focused entirely on defendant who was not known to have any gang connection. He also inquired about the detective's choice not to look for evidence of the crime at defendant's house, beyond looking for a vehicle, when he went to the house in the days after the vandalism.
Redirect of the detective began with the following exchange:
"[Q.] So [d]etective . . ., you said that you were able to locate an address associated with [defendant]; is that correct?
"A. Yes.
"Q. And do you recall what that address was?
"[Defense counsel.] Objection. Hearsay.
"The Court[.] Sustained.
"[Prosecutor.] How close was that address to [David C. and Stephanie S's] residence?
"A. It was on the other side of the city.
"Q. About how long would it take to travel there?
"A. Twenty minutes.
"Q. And in the course of your investigation, were you able to locate a vehicle associated with [defendant]?
"[Defense counsel.] Objection. Hearsay. Foundation. 402.
"The Court[.] Overruled.
"[Detective.] Can you repeat the question?
"[Prosecutor.] In the course of your investigation, were you able to locate a vehicle associated with [defendant]?
"A. I was."
After another line of questioning, the prosecutor ended his redirect of the detective with the following:
"Q. Now, [defense counsel] on cross-examination asked you about how in your report you indicated that it was your opinion that [defendant] was, in fact, the suspect tied to this case. Do you recall that?
"A. I do.
"Q. And he indicated - [defense counsel] referenced several reasons for that in your report, including [David C. and Stephanie S's] identification of [defendant] in the video. Do you remember that?
"[Defense counsel.] Objection. Facts not in evidence as to one of the individuals in that question.
"The Court[.] Sustained.
"[Prosecutor.] So one of the things that [defense counsel] mentioned was [David C.'s] identification of [defendant] in the video.
"A. Yes
"Q. Is that correct?
"A. Correct.
"Q. And as well as the video of the crime depicting a suspect matching the physical description and body language of [defendant]?
"A. Correct.
"Q. Now, is part of the reason that you also concluded that, part of that reason is because you had located a vehicle associated with [defendant]?
"A. It was.
"Q. And was the vehicle you located consistent with the rest of the evidence in your investigation?
"[Defense counsel.] Objection. Calls for hearsay. And 402.
"The Court[.] Sustained.
"[Prosecutor.] Okay. No further questions."
The jury found defendant guilty of both counts charged. The court suspended imposition of sentence and placed defendant on two years of formal probation. It also imposed restitution related fines and various fees. Defendant timely appealed.
DISCUSSION
Defendant contends the detective's testimony about a vehicle associated with defendant was inadmissible hearsay based on information gleaned from DMV records and its admission was both prejudicial and a violation of his due process rights under the United States Constitution. He also contends the court further violated his due process rights by imposing fines and fees without any determination of his ability to pay them, or, in the alternative, the court's oral pronouncement concerning fines is inconsistent with the court's minutes. We find no error.
For the first time in his reply brief, defendant adds an equal protection based argument. We decline to consider this late raised contention. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295.)
I. Admissibility of Evidence
"'"Hearsay evidence" is 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.' [Citation.] Hearsay evidence is inadmissible '[e]xcept as provided by law.' [Citation.] Multiple levels of hearsay are admissible if each level of hearsay 'meets the requirements of an exception to the hearsay rule.' [Citation.]" (People v. Landau (2016) 246 Cal.App.4th 850, 866.) If an out-of-court statement is being offered for a relevant purpose other than for the truth of the matter asserted, it is not hearsay and no special exception to the hearsay rule need apply for its admission. (People v. Sanchez (2016) 63 Cal.4th 665, 681 (Sanchez).) A trial court's hearsay determination will not be disturbed on appeal absent a showing of an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Clark (2016) 63 Cal.4th 522, 590.)
"When considering whether an out-of-court assertion is nonhearsay, '[t]he first, and most basic, requirement for applying the not-for-the-truth limitation . . . is that the out-of-court statement must be offered for some purpose independent of the truth of the matters it asserts. That means that the statement must be capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true.'" (People v. Portillo (2023) 91 Cal.App.5th 577, 590.)
Here, the detective's confirmation he located a vehicle associated with defendant and that such part of his investigation was one of the factors that led him to conclude defendant committed the vandalism at David C. and Stephanie S.'s house was not hearsay. It was not offered for the truth of the matter asserted - that a vehicle actually belonged to defendant. Rather, it was offered to rehabilitate the detective's testimony concerning his investigation and dispel any notion of bias against defendant.
For the first time on cross-examination, defense counsel elicited that the detective's investigation led him to conclude defendant was responsible for the vandalism. He then asked a series of questions which attacked various non-vehicle related bases underlying the conclusion and questioned the detective's focus on defendant. The line of inquiry insinuated that the investigation was faulty and that the detective inappropriately focused on defendant despite him having no known gang ties, rather than exploring gang involvement based on the tag scrawled on the house's garage.
The testimony elicited by the prosecutor on redirect attempted to reestablish the integrity of the detective's investigation and rehabilitate the detective as a witness. It explained why he chose to take or not take certain investigative steps, and it explained there were other bases for his conclusion which were not called into question by the cross-examination. The testimony was admissible for these relevant nonhearsay purposes. (See Sanchez, supra, 63 Cal.4th at p. 681 [hearsay doctrine not implicated when out-of-court statement received for purpose other than to prove truth of fact it asserts]; cf. People v. Edwards (2013) 57 Cal.4th 658, 730-733 [police officer rebuttal testimony based on scientific testing information received from crime lab personnel for purposes of reaffirming quality of officer's investigation which was attacked on crossexamination]; People v. Perez (2017) 18 Cal.App.5th 598, 621 [rebuttal testimony concerning content of text messages sent by another for purposes of rehabilitating witness's credibility attacked on cross-examination]; People v. Adamson (1953) 118 Cal.App.2d 714, 719-720 [rebuttal testimony concerning content of letter to dispel cross-examination inference of witness bias or improper motive for actions].)
Defendant mistakenly equates the testimony in this case with that at issue in People v. Jones (2017) 3 Cal.5th 583, and Sanchez, supra, 63 Cal.4th 665. In the former, the Supreme Court upheld the exclusion of lay witness opinion testimony that the defendant was no longer a gang member and the bases for such opinion, which included out-of-court statements by the defendant and others indicating as much. (Jones, supra, at pp. 601-602.) It did so without addressing a hearsay objection on which the trial court ruled. (Ibid.) And in the latter, the direct examination testimony held to be inadmissible hearsay was an expert's relaying of case-specific out-of-court statements on which the expert based his opinion for the specific purpose of bolstering the validity of the opinion and its weight. (Sanchez, supra, at pp. 684-686.) Here, the challenged testimony was not offered on direct examination, was not offered to lend credence to a lay or expert opinion, and did not communicate case-specific out-of-court statements for their truth.
Because there was a legitimate basis for admitting the evidence, defendant has not demonstrated error. (People v. Brown (2004) 33 Cal.4th 892, 901; People v. Rios (1985) 163 Cal.App.3d 852, 866.)
Given our conclusion, we do not reach defendant's related claims of prejudice and violation of his constitutional right to due process.
II. Fines and Fees
Certain fines and fees are reflected in the trial court's minute order. Defendant claims the specified fine amounts are contrary to the court's oral pronouncements and that imposition of any fines and fees was unconstitutional because the court did not first determine whether he had the ability to pay. We disagree with defendant on both points.
Defendant's constitutional argument relies on Duenas. The facts and circumstances of Duenas were aptly explained by another appellate court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844: "In Duenas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. [Citation.] As a teenager, the defendant's license was suspended when she could not pay some citations. [Citation.] She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the Hobson's choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. [Citation.] She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. [Citation.]" (Kopp, supra, at p. 94.)
"After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. [Citation.] To try to stop the cycle of ever enhancing fees and fines, the defendant brought a due process challenge to Penal Code section 1465.8, Government Code section 70373, and Penal Code section 1202.4, the statutes under which the fees and fines were imposed. [Citation.] She argued that '[t]hese statutes . . . are fundamentally unfair because they use the criminal law, which is centrally concerned with identifying and punishing only blameworthy decisions, to punish the blameless failure to pay by a person who cannot pay because of her poverty. The laws, moreover, are irrational: They raise no money because people who cannot pay do not pay.' [Citation.]" (Kopp, supra, 38 Cal.App.5th at p. 95.)
The Second Appellate District, in a published opinion, pronounced that "[i]mposing unpayable fines on indigent defendants" amounted to punishing them for their indigence. (Duenas, supra, 30 Cal.App.5th at p. 1167.) Doing so in the Duenas defendant's case, the court concluded, violated her due process rights. It explained, "Because the only reason [she] cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional." (Id. at p. 1160.)
Since Duenas, appellate courts have been flooded with appeals contesting fines and fees. Many have rejected application of due process principles in this context, with some finding the proper analysis is instead the excessive fines clause in the Eighth Amendment of the United States Constitution and a similar protection provided in the California Constitution. (See, e.g., People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069; Kopp, supra, 38 Cal.App.5th at pp. 96-97; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038-1039 (conc. opn. of Benke, J.).) Others have refused to extend its reach beyond the precise circumstances presented in Duenas. (See, e.g., People v. Oliver (2020) 54 Cal.App.5th 1084, 1103; People v. Allen (2019) 41 Cal.App.5th 312, 326-327; People v. Caceres (2019) 39 Cal.App.5th 917, 926-927; Kopp, supra, at p. 94; People v. Johnson (2019) 35 Cal.App.5th 134, 138-139.)
We need not decide whether the Duenas due process framework is ever appropriate and, if so, in precisely which types of cases. Even assuming arguendo due process principles were applicable here, the imposition of fines in this case did not rise to the level of a due process violation as it did in Duenas. As the trial court noted, defendant is young and healthy, and he "indicated a willingness and desire to work and get back on his feet." And it gave him an opportunity to do exactly that by suspending imposition of its sentence and granting probation. There are no facts even vaguely comparable to the situation of the defendant in Duenas.
The issue may soon be clarified by the Supreme Court. Pending before it, based on a grant of review in Kopp, are the following questions: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp, S257844, review granted Nov. 13, 2019 .)
Turning to defendant's argument addressing the fine amounts, he contends the transcript of the sentencing proceedings demonstrate the trial court chose not to impose any fines. In contrast, he notes the court's minutes reflect a $300 state restitution fine and a $300 probation revocation restitution fine, the latter of which was stayed and would become effective only upon revocation of probation. He urges us to vacate the fines based on the principle that a court's oral pronouncement controls.
We disagree with defendant's interpretation of the record. The trial court's oral pronouncements do not indicate a choice not to impose any fines. Rather, the exchange between defense counsel and the court identified by defendant demonstrates the court made restitution a priority over fees and indicated there would be no fines other than the mandatory fines it already ordered. Thus, the court minutes are an accurate reflection of the court's actions concerning the fines.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J. MOORE, J.