Opinion
B292957
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID DANIEL DELGADO, Defendant and Appellant.
Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA114068) APPEAL from a judgment of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Affirmed. Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant David Daniel Delgado of unlawfully taking or driving a vehicle. Delgado appeals, contending his counsel provided ineffective assistance by failing to object to the admission of uncharged misconduct, and the imposition of fines and assessments, without a determination of his ability to pay, violated his due process rights. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
Vanessa Laguna is Delgado's cousin. On September 29, 2016, Delgado stayed overnight at Laguna's Glendora apartment. Before going to bed for the evening, Laguna locked the doors to the residence and left her car keys on the kitchen counter. Her car, a Mitsubishi, was parked in its usual place, a lot next to her apartment, with the doors locked. The gas tank was halfway full. When Laguna went to sleep, Delgado was on the apartment balcony, smoking cigarettes.
Laguna awoke the next morning at 6:00 a.m. and got her children ready for school. However, she soon discovered that her car keys were missing, her front door was open, Delgado was gone, and the Mitsubishi was no longer in the parking lot. Laguna believed Delgado was responsible for taking the car because he had done so on a previous occasion. Laguna had never given him permission to drive her car. She called Delgado repeatedly and left messages, but he did not answer or return her calls. Laguna then notified family members of the theft. She also reported the crime to the police. Her 911 call reporting the theft was played for the jury.
The next day, Laguna learned via a family friend that Delgado had been seen driving the Mitsubishi near Jerry's Market in Azusa. Laguna and her sister went to the market, where they saw Delgado on a nearby street corner. Laguna confronted Delgado about the car theft. He asked if she had called the police. When she replied that she had, Delgado became "paranoid," threw Laguna's car keys on the ground, and ran toward his father's house, which was close by.
Shortly thereafter, Delgado's father called and told Laguna that her car was parked in front of a church in Glendora. Laguna discovered the car in that location. The gas tank was empty. The car was dirty, full of cigarette ashes, and smelled of smoke. An officer responded to the car's location and inspected it. The interior was "kind of a mess."
In the prior incident, which occurred several months before the charged crime, Delgado had also stayed overnight at Laguna's residence. When she awoke, her car was missing and Delgado was gone. She telephoned family members to try to find him and the car. Several hours later, Delgado's father informed Laguna that the car had been returned. She found it parked in her regular parking spot. Delgado admitted he had parked it there. She had not given him permission to drive the car.
The defense presented no evidence.
2. Procedure
A jury convicted Delgado of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). He admitted suffering a prior "strike" conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serving three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court held a single sentencing hearing on the instant case and an unrelated matter, case no. KA113845. It sentenced Delgado to eight months in prison, to run consecutively to the sentence in case No. KA113845. It imposed a $300 restitution fine, a suspended parole revocation restitution fine in the same amount, a $40 court operations assessment, and a $30 criminal conviction assessment. Delgado timely appealed.
The trial court initially sentenced Delgado to a term of 16 months consecutive, but subsequently corrected the sentence to eight months.
DISCUSSION
1. Evidence of prior misconduct
The parties agreed that evidence of Delgado's prior criminal record should be excluded. However, the People sought to admit evidence of Delgado's prior theft of Laguna's car, in part because Laguna mentioned it in her 911 call when reporting the current theft. In an Evidence Code section 402 hearing, the trial court ruled that the evidence Delgado took the Mitsubishi without permission on the previous occasion was admissible on the issues of intent and consent. Delgado contends that his counsel provided ineffective assistance by failing to object that the evidence was inadmissible under Evidence Code section 1101. We disagree.
Defense counsel did object on the grounds that he had received insufficient notice of the prior misconduct evidence, and that it might be difficult for Laguna to avoid disclosing Delgado's prior criminal history if she was allowed to testify about the prior incident. However, he did not raise any other objection to the evidence. (See Evid. Code, § 353 [verdict shall not be set aside unless an objection was "so stated as to make clear the specific ground of the objection"]; People v. Brooks (2017) 3 Cal.5th 1, 42 [objection must fairly inform the trial court and party offering the evidence of the specific reason asserted for exclusion, so that the party can respond appropriately and the court can make a fully informed ruling].) Therefore, as Delgado appropriately acknowledges, his claim that the evidence was improperly admitted has been forfeited. (See, e.g., People v. Clark (2016) 63 Cal.4th 522, 603.)
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is "broadly defined as that having a 'tendency in reason to prove or disprove any disputed fact that is of consequence' to resolving the case." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405 (Bryant); Evid. Code, § 210.) Evidence a defendant committed misconduct other than that currently charged is inadmissible to prove his or her propensity to commit the charged crime. (Evid. Code, § 1101, subd. (a); Bryant, at pp. 405-406; People v. Rogers (2013) 57 Cal.4th 296, 325.) However, such evidence is admissible if it is relevant to prove, among other things, intent. (Evid. Code, § 1101, subd. (b); People v. Molano (2019) 7 Cal.5th 620, 664; People v. Jones (2011) 51 Cal.4th 346, 371.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (Jones, at p. 371.) "The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent. . . ." (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859.)
Even if other crimes evidence is admissible under Evidence Code section 1101, subdivision (b), it should be excluded under Evidence Code section 352 if its probative value is substantially outweighed by undue prejudice. (Bryant, supra, 60 Cal.4th at pp. 406-407; People v. Thomas (2011) 52 Cal.4th 336, 354.) Because other crimes evidence may be inflammatory, it should be admitted only if it has substantial probative value. (People v. Jones (2013) 57 Cal.4th 899, 930; People v. Ewoldt (1994) 7 Cal.4th 380, 404.) We review a trial court's rulings on relevance and the admission of evidence under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1114; People v. Rogers, supra, 57 Cal.4th at p. 326.)
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.]' " (People v. Bell (2019) 7 Cal.5th 70, 125.) " 'If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' [Citations.]" (Id. at pp. 125-126.)
Delgado fails to establish either prong of his ineffective assistance claim. First, evidence of the prior incident was properly admitted. Delgado's intent, and whether Laguna gave him permission to drive the Mitsubishi, were material issues in the case. (See CALCRIM No. 1820; People v. Page (2017) 3 Cal.5th 1175, 1182 [Vehicle Code section 10851 punishes driving a vehicle without the owner's consent, with the intent to either permanently or temporarily deprive the owner of possession]; People v. Martell (2019) 42 Cal.App.5th 225, 233.) Counsel argued, among other things, that the evidence suggested Laguna gave Delgado permission to drive the car.
Counsel argued: "Isn't it . . . possible that Vanessa lent him the car at some point and then [he] overstayed the permission. Isn't that also possible, that the first time that . . . she put the keys on the counter, he takes it, gives it back when he's supposed to give it back? That would explain why she put the keys back a second time, the second time he stays over."
The prior incident was similar enough to support an inference that Delgado had the same intent in each instance, that is, to take the car without permission. The fact Delgado previously engaged in similar behavior made it more likely he acted with the requisite intent, and without permission, in the charged offense. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1096 [the " ' "recurrence of a similar result . . . tends (increasingly with each instance) to negative . . . good faith or other innocent mental state" ' "]; People v. Jones, supra, 51 Cal.4th at p. 371 ["As we have often explained, the recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent"]; People v. Spector (2011) 194 Cal.App.4th 1335, 1379-1380.) Delgado argues that the evidence lacked probative value because there was no evidence he knew, on the prior occasion, that Laguna had not given her implied consent. But there was such evidence: Laguna testified she had never given her consent to his driving the car.
The evidence therefore was probative to establish Delgado's mental state, and to disprove the defense theory that Laguna consented to his use of the car, or that he reasonably believed she had done so. Any objection under Evidence Code section 1101 would have lacked merit. "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90; People v. Kendrick (2014) 226 Cal.App.4th 769, 780.)
Nor has Delgado shown any reasonable probability that, had the evidence been excluded, the result of the proceeding would have been different. The People's evidence was overwhelming and undisputed. The record does not suggest any reasonable basis for jurors to disbelieve Laguna's testimony. And, defense counsel used the evidence of the prior incident to Delgado's advantage, arguing that the fact he took the car once and returned it demonstrated he did not take it without permission the second time. In any event, the evidence was not inflammatory, and was less serious than the charged crime. (See People v. Eubanks (2011) 53 Cal.4th 110, 144 [potential for prejudice is decreased when uncharged acts are no more inflammatory than the charged offenses].) The court gave a limiting instruction advising that the prior crime evidence could be considered only on the issues of Delgado's intent and whether he had a reasonable, good faith belief that Laguna consented to his use of the car, and for no other purpose. The instruction specifically required that the jury "not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." We presume the jury followed this instruction, which mitigated the potential for prejudice. (People v. Jones, supra, 51 Cal.4th at p. 371; People v. Foster (2010) 50 Cal.4th 1301, 1332.)
In sum, Delgado's ineffective assistance claim lacks merit.
2. Imposition of fines and assessments
Without objection from Delgado, the trial court imposed a restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)), a suspended parole revocation restitution fine in the same amount (Pen. Code, § 1202.45 subd. (a)), a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Delgado avers that imposition of the fines and assessments, without a determination of his ability to pay, violated his due process rights. He argues that we should reverse the court operations assessment and the criminal conviction assessment and stay execution of the restitution fines unless and until the People prove he has the present ability to pay them. We disagree.
Delgado avers that the trial court did not actually impose the fines and assessments at sentencing because it failed to expressly reference the relevant statutes. Instead, at sentencing, the court stated it was imposing "a fine of $370." Therefore, he asserts, the minute order—which lists the specific amounts imposed pursuant to each statute—cannot be harmonized with the oral pronouncement of judgment. Although the court's oral pronouncement of judgment generally controls over any discrepancy with the minutes or abstract of judgment, where such a conflict exists we harmonize the record if possible. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Smith (1983) 33 Cal.3d 596, 599; People v. Thompson (2009) 180 Cal.App.4th 974, 978.) There is no conflict here. The amount the court imposed—$370—corresponds to the fines and assessments listed in the minute order (the $300 restitution fine, the $40 court operations assessment, and the $30 criminal conviction assessment). "In Los Angeles County, trial courts frequently orally impose [penalties and surcharges] . . . by a shorthand reference to 'penalty assessments.' The responsibility then falls to the trial court clerk to specify the penalties and surcharge in appropriate amounts in the minutes and, more importantly, the abstract of judgment." (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) It is plain that this is what transpired here, as further demonstrated by the fact the court subsequently issued a nunc pro tunc minute order expressly listing the fines and assessments at issue.
Our colleagues in Division Two recently held that Dueñas was wrongly decided. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted November 26, 2019, S258946; see also People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069; cf. People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [concluding that "the due process analysis in Dueñas does not justify extending its holding beyond" the "extreme facts" presented therein].) We observe that the California Supreme Court is currently considering whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.) Pending further guidance from our Supreme Court, however, we agree with Hicks.
Moreover, unlike the defendant in Dueñas, Delgado did not object below on the ground of his inability to pay. Generally, where a defendant has failed to object to a restitution fine or court fees based on an inability to pay, the issue is forfeited on appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 863.) We agree with our colleagues in Division Eight that this general rule applies to the restitution fine and the assessments imposed here under the Penal and Government codes. (People v. Rodriguez (2019) 40 Cal.App.5th 194, 206; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155; but see People v. Santos (2019) 38 Cal.App.5th 923, 931-932 ; People v. Castellano (2019) 33 Cal.App.5th 485, 489.)
Delgado argues that, to the extent his challenge has been forfeited by his counsel's failure to object below, his counsel provided ineffective assistance. Further, he points out that the trial court did not impose the suspended parole revocation restitution fine until it issued the nunc pro tunc order after the sentencing hearing, so counsel had no opportunity to object to this fine. But, assuming arguendo that Delgado's challenge to the fines and assessments is cognizable, Dueñas does not apply here. Dueñas was the disabled, unemployed, often homeless mother of two young children. She was convicted of vehicle offenses. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The Dueñas decision is based on the due process implications of imposing assessments and fines on an impoverished defendant. The situation in which Delgado has put himself does not implicate the same due process concerns at issue in the factually unique Dueñas case. Delgado, unlike Dueñas, does not face incarceration because of an inability to pay assessments and fines. He is in prison because he committed various offenses in this and in a second matter. Even if he does not pay the assessments and fines, there is no indication he will suffer the cascading and potentially devastating consequences Dueñas faced. (Dueñas, at p. 1163.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. I concur:
EGERTON, J. LAVIN, J., Concurring:
I concur in the judgment. I write separately because I disagree with the majority's contention that People v. Dueñas (2019) 30 Cal.App.5th 1157 was wrongly decided. I also disagree that there is no conflict between the trial court's oral pronouncement of judgment and the sentencing minute order and abstracts of judgment.
The trial court held a single sentencing hearing in this case and in case No. KA113845 (second case) on November 28, 2017. Based on the reporter's transcript, the court ordered defendant David Delgado, to "pay a fine of $590 [in the second case]. That will be collected through the efforts of the Department of Corrections." Defendant was also ordered to "pay a fine of $370 [in this] case, which would be collected through the efforts of the Provision [sic] Department." The court did not mention or impose a parole revocation restitution fine, a court operations fee, or a criminal conviction fee.
The minute order of that date, however, indicates that the court imposed the following fines and fees in this case: a $30 criminal conviction fee (Gov. Code, § 70373); a $40 court operations assessment (Pen. Code, § 1465.8); and a $300 restitution fine (§ 1202.4, subd. (b)). The minute order also states that the court imposed a $300 parole revocation restitution fine but stayed it "unless parole, post-release community supervision or mandatory supervision is revoked." (§ 1202.45.) The original and amended abstracts of judgment include the same restitution fine ($300) and parole revocation restitution fine ($300). As for the criminal conviction fee and court operations assessment, the abstracts of judgment appear to include the same criminal conviction fee and court operations assessment reflected in the minute order.
All undesignated statutory references are to the Penal Code.
The abstracts include totals for this case and the second case without differentiating the amounts imposed in each case for the court operations assessment ($200) and conviction assessment ($150). The abstracts also include a $10 citation processing fee under section 1463.07 in the second case.
In a criminal case, the oral pronouncement of a sentence constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185; Mesa, at p. 471 [to the extent a minute order diverges from the sentencing proceedings it purports to memorialize, it is presumed to be the product of clerical error].) Accordingly, courts may correct clerical errors at any time, and appellate courts may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of sentence. (Mitchell, at pp. 185-188.)
As noted, the reporter's transcript of the sentencing hearing indicates that the court imposed a $370 fine in this case. Because the minute order and abstracts of judgment list a different amount for the fine, and additional fees the court did not impose, I would order the court to correct them upon remand. (See People v. Zackery (2007) 147 Cal.App.4th 380, 389 [restitution fines could not be simply added to the judgment later outside defendant's presence].) And because defendant did not object to the imposition of a restitution fine in excess of the minimum $300 amount, he has forfeited any challenge to the fine based on his inability to pay. (§ 1202.4, subd. (d); People v. Avila (2009) 46 Cal.4th 680, 729.)
LAVIN, J.