Opinion
D075005
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN EHM, Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Allison V. Acosta and Eric A. Swenson, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCD278598, SCD276709) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed as modified. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Allison V. Acosta and Eric A. Swenson, Deputy Attorneys General for Plaintiff and Respondent.
In early 2018, Dustin Ehm committed a series of burglaries and thefts from various Home Depot stores in San Diego county. After Ehm failed to return from a break at the outset of trial, a jury trial proceeded in his absence. Multiple Home Depot loss prevention officers identified Ehm as the perpetrator shown in surveillance footage of the incidents. The jury convicted Ehm on 16 of 22 charged counts, and the trial court imposed a split sentence consisting of four years in county jail and two years of mandatory supervision. The court also imposed various fines and assessments. On appeal, Ehm claims (1) his due process rights were violated when the trial court allowed the loss prevention officers' identification testimony because it was a police detective who provided the loss prevention officers with Ehm's name; (2) the trial court erred in imposing various fines and assessments without determining he had the ability to pay them; and (3) the abstract of judgment must be corrected to reduce one particular fee, in accordance with the oral pronouncement of judgment. We conclude only Ehm's final claim has merit, and affirm the judgment in all other respects.
FACTS
On eight separate occasions between March 13 and May 1, 2018, Ehm stole five generators, one pressure washer, a paint sprayer, two dollies, and other merchandise from three Home Depot stores. One Home Depot loss prevention officer began to suspect Ehm as a potential thief after a personal encounter with him and subsequently viewing store surveillance footage. This loss prevention officer subsequently snapped a cell phone photograph of Ehm and created a "be on the lookout" (BOLO) flyer featuring that photograph and other images from store surveillance footage. He circulated the BOLO flyer to his colleagues at other Home Depot locations, and to law enforcement. Other loss prevention officers came to recognize Ehm from store surveillance footage and from the BOLO flyer. A detective with the San Diego Police Department investigated the thefts; he used information provided by the loss prevention officers (including surveillance video footage and the BOLO flyer) and a booking photo to identify the suspect as Ehm, and provided Ehm's name to a Home Depot loss prevention officer.
The jury convicted Ehm of six counts of commercial burglary (Pen. Code, §§ 459, 460, subd. (b); counts 7, 11, 13, 15, 17, and 21); six counts of grand theft (id., § 487, subd. (a); counts 8, 12, 14, 16, 18, and 22); two counts of shoplifting (id., § 459.5; counts 9 and 19); and two counts of petty theft (id., § 484, subd. (a); counts 10 and 20). In a separate case, Ehm pled guilty to willfully failing to appear while out of custody on bail, a violation of section 1320.5. The trial court imposed a split sentence consisting of four years in county jail followed by two years of mandatory supervision. The court also imposed various fines and assessments, including $9,100 in restitution fines (id., § 1202.4, subd. (b)), $680 in court operations assessments (id., § 1465.8), and $510 in court facilities assessments (Gov. Code, § 70373).
Statutory citations are to the Penal Code unless otherwise indicated.
The jury found Ehm not guilty on two counts related to the incident alleged to have occurred on or around January 10 (counts 1 and 2) and hung as to four counts related to incidents alleged to have occurred on February 22 (counts 3 and 4) and March 4 (counts 5 and 6). The trial court dismissed counts 3 through 5 on the prosecutor's motion.
DISCUSSION
I.
The Trial Court Did Not Err in Admitting the Identification Testimony
Ehm contends the trial court erred in admitting witness identification evidence he claims was "tainted" by the police. He argues that the police detectives drew conclusions about the identity of the perpetrator and relayed incriminating information about Ehm to the loss prevention officers "before any of them had made an identification." He contends that telling the loss prevention officers Ehm's name, giving them a booking photo of Ehm, and telling them he was linked to the license plates seen at the burglaries "cannot have failed to taint" the identifications and the identifications were not otherwise reliable. Finally, he contends that the existence of not guilty and hung counts demonstrates that the "tainted" identifications were prejudicial.
See footnote 2, ante.
A. Additional Factual Background
Prior to trial, defense counsel moved in limine to exclude witness identification evidence, arguing that the government tainted critical eyewitness identification evidence by providing Ehm's name to the loss prevention officer, who then relayed that information to his Home Depot colleagues. Defense counsel argued that, because the witnesses only learned Ehm's name from police, the witnesses should be limited to describing "their perceptions of the actual suspect" and that any "tainted" identification claims should be excluded. Defense counsel argued that "law enforcement had already done the investigation . . . and told all of the loss prevention officers that they believe the person was Dustin Ehm, and so all of the loss prevention officers just adopted that conclusion, but it wasn't something that each witness individually was given an opportunity to objectively make an identification." Defense counsel contended allowing the identification evidence would amount to a denial of due process.
The prosecutor argued the identification testimony was not "tainted" because the loss prevention officers had seen the person that committed the thefts, and the person that committed the thefts was now identified by name as Ehm.
The trial court denied the defense motion.
Because Ehm relied on the preliminary hearing testimony to support his pretrial motion to exclude the identifications, and he again cites portions of that testimony on appeal, we summarize the testimony from the preliminary hearing before turning to the trial testimony.
1. Preliminary Hearing
Loss prevention officer Adrian R. testified that in November 2017, he was with a cashier when he saw a man try to walk out of El Cajon Home Depot with merchandise. When confronted, the man left the merchandise and left the store. The man had been approximately two to three feet away from Adrian. Adrian observed that, at the time, the man had a goatee and a mustache.
Adrian saw the same man again (he believed it was in early February 2018). The man left the store without any merchandise when he realized he was being watched by Home Depot employees. Adrian was able to come within three to four feet of the man and got "a better description" of him. Adrian used his cell phone to photograph the man, who was later identified as Ehm.
On February 22 (counts 3 and 4), a cashier informed Adrian she had observed an individual leaving the store without paying for merchandise. The cashier reported she watched the man get into a black Lincoln Town Car; she reported the license plate number. Adrian viewed the security footage and recognized the man leaving the store with unpaid merchandise.
Adrian reviewed surveillance video of the incidents charged in counts 11 and 12 (April 13) and "immediately recognize[d]" the man on the video as the defendant.
In the incident charged in counts 15 and 16 (April 18), Adrian saw the same man enter the store, pushing an empty shopping cart. Adrian recognized the man immediately as the suspected thief. Adrian testified he specifically recalled the man's "mustache" and "body posture" as being distinctive and standing out to him. When he saw the suspect flee, he observed the car's license plate number and recognized it as the same number previously relayed to him by the cashier who had observed the prior incident.
Adrian reviewed surveillance video of the incidents charged in counts 21 and 22 (May 2) and immediately recognized the man as the one he had observed in the prior incidents.
Adrian coordinated with colleagues working in other Home Depot locations, relaying the information he was aware of and receiving information from the others. Adrian helped create and shared a BOLO flyer that had still images of the man from surveillance footage and the cell phone photo he had taken. Adrian also communicated with law enforcement, providing details of the incidents, including the license plate number he had collected, and the cell phone photo. At the preliminary hearing where Ehm was present, Adrian identified Ehm as the suspect he had previously seen—both in person and in video surveillance—committing the crimes.
Loss prevention officer Rogelio F., who observed on surveillance video the incidents charged in counts 5 and 6 (March 4) and counts 13 and 14 (April 16) testified that, after observing the man on video in the second incident, he recognized the suspect because he had "the same characteristics" as he had previously observed (on video) and from seeing him "on previous alerts from other stores['] incidents." He also identified Ehm while present in court during the preliminary hearing.
Loss prevention officer Jeffrey S., who observed on surveillance video the incidents charged in counts 7 and 8 (March 13) and counts 17 and 18 (April 18) testified that, during the April 18 incident, he immediately recognized the suspect from the prior incident and from "multiple BOLO's." He did not know the suspect's name, but recognized his face from the prior surveillance footage. When he reviewed surveillance video of a third incident (counts 19 and 20; April 24), he immediately recognized the man as the same person from the prior (March 13 and April 18) incidents. Shortly thereafter, Jeffrey was at another Home Depot location when he "crossed paths" with the same man, whom he recognized in person. Jeffrey testified that he only learned later from colleague and loss prevention officer Adrian that the man's name was Dustin Ehm. Jeffrey testified he recognized the man from Adrian's BOLO flyer as the same individual from the incidents in his store. However, Jeffrey testified that his determination that the same individual was involved in all three theft incidents at his store was derived from his personal observation of the store surveillance video; he further testified the quality of the surveillance video was so good that he immediately recognized that same man when he saw him in person at another store. He testified that the person he saw in all three incident videos and the person he saw in person in the other store was the same person he identified in court that day.
Loss prevention officer Jason G., who reviewed surveillance video of the incident charged in counts 9 and 10 (March 22), testified he did not recognize the suspect when he first viewed the video. However, he later watched the video with his colleague Adrian, who recognized the suspect "by name." Jason identified Ehm at a preliminary hearing, recognizing Ehm from pictures sent out on a BOLO flyer. He testified that he believed the person in the surveillance video from the March 22 incident was the same person as the one in the BOLO flyer, and was the same person he saw in court that day.
San Diego police detectives investigated the information provided by Home Depot associates and studied the store surveillance videos. Sometime between the April 18 incident and the May 1 incident, detectives shared with Adrian that, based on the license plate information that Adrian and other asset protection specialists had shared with law enforcement, the police believed the suspect's name was Ehm.
At trial, a San Diego police detective testified that he had viewed a Home Depot BOLO, compared it to an "official document photo," and identified the suspect as defendant Ehm. He communicated defendant Ehm's name to another police officer investigating Home Depot thefts and to a Home Depot loss prevention officer sometime around the end of April, beginning of May.
Adrian responded under oath to the following questions from defense counsel:
"Q. . . . So what information was relayed to you by the detectives during that conversation?
"A. Just the name.
"Q. . . . How were they linking that name to the person that you're talking about, what did they tell you?
"A. I believe there was three or four different license plates that were obtained, and those were given to the detectives, and the name came back to the plate number.
"Q. Okay, and to be clear, you only saw the license plate on one occasion; correct?
"A. Yes.
[¶] . . . [¶]
"Q. But when law enforcement talked to you, they told you that there were other license plates that you were not previously aware of?
"A. No. All those license plates were given to them from Home Depot.
"Q. Okay. But not from you?
"A. Correct.
"Q. And law enforcement told you that they believed the person was Mr. Ehm; correct?
"A. From the photos given to law enforcement and the plate number, yes.
[¶] . . . [¶]
"Q. And then you gave Mr. Ehm's name to other [loss prevention officers]; correct?
"A. Correct.
[¶] . . . [¶]
"Q. So prior to you telling the other [loss prevention officers] Mr. Ehm's name, they did not come to you and say the crimes at their stores were committed by Mr. Ehm; correct?
"A. No name, just the face from the photos that were taken.
"Q. When they confront you with the face, he was unidentified; correct?
"A. Correct.
"Q. And you shared with them your opinion as to the identification; correct?
"A. Correct.
"Q. And you first began referring to this suspect as Mr. Ehm based on what police told you; correct?
"A. Correct."
The prosecutor then asked Adrian, "Based on [Ehm's] face in the courtroom, do you recognize him as being the suspect from all the incidents you testified about?" Adrian answered, "Yes," and stated that knowing Ehm's name had no impact on his identification of the suspect.
2. Trial Testimony
At the outset of trial, Ehm left court during a break and did not return. By that point, the jury had seen him present, including during voir dire. The jury also was permitted to view a video of Ehm, edited to delete the sound, speaking with his attorney in court, and to view a photograph of him taken in court by an investigator from the District Attorney's office.
The following evidence was adduced regarding the charged crimes:
Counts 1 and 2 (burglary and grand theft): An assistant store manager at a Chula Vista Home Depot testified that on January 10, 2018, he heard an associate say that someone was " 'walking out with merchandise.' " He saw a man leaving with a $1,200 tankless water heater on a pushcart; the manager told him to stop, but the man continued into the parking lot and loaded the merchandise into an older model Mercedes Benz with a female driver. The manager noted the license plate number on the car and provided it to the police. The manager testified he saw the man from 25 feet away and was unable to identify him. The jury found Ehm not guilty on these counts.
Counts 3 and 4 (burglary and grand theft): Adrian, a loss prevention officer for Home Depot, testified that, in November 2017, he saw a man attempting to leave the store with a cart full of merchandise. When asked whether he had a receipt, the man abandoned the cart and left the store. Adrian later reviewed store surveillance video depicting the man selecting merchandise from the store. Adrian testified he recognized the man when he entered the store again in January 2018. He was already suspicious of the man, so he followed him. Using his cell phone, he snapped a photo of the man. He testified the man had distinctive facial hair and a mole under his eye. He did not know the defendant's name at this time, but later identified the man he took a photograph of as the same individual he saw in video surveillance of a later incident (in February 2018), and in court—defendant Ehm.
A cashier testified that on February 22, she observed a man leave the El Cajon location with a generator and then struggle to get it into his car. She knew generators had been stolen from several Home Depot locations, so she noted a description of the car and the license plate number. She testified the man she saw in court was the man she had seen in the parking lot that day.
Loss prevention officer Adrian was subsequently notified by a store manager that a theft had occurred at the El Cajon location on February 22. Adrian reviewed store surveillance video, which was played for the jury, depicting a man arriving in the store parking lot in a Lincoln Town Car, entering the store, pushing a cart in the store, selecting a $999 generator, and leaving the store without paying for it. Adrian testified that, at the time, he recognized the man as the same man he had previously followed and taken a photo of with his cell phone. He acknowledged he did not then know the man's name, but identified the man in court as defendant Ehm. The jury hung on these counts, with the jury reporting they were hopelessly deadlocked and split 11 to 1, voting not guilty.
Counts 5 and 6 (burglary and grand theft): Rogelio, a loss prevention officer at the Saturn Boulevard Home Depot location, testified an inventory check revealed a $999 generator was missing. He reviewed surveillance video from March 4 (which was played for the jury) and observed a man enter the store pushing an empty shopping cart, and then place a generator and some other items in the cart. Rogelio testified that, at the time, he had viewed BOLO flyers and believed the man in the flyer looked similar to the man in the video. He reported the theft to the police. The jury hung on these counts, with the jury reporting they were hopelessly deadlocked and split 11 to 1, voting guilty.
Counts 7 and 8 (burglary and grand theft): Jeffrey, a loss prevention officer at the Saturn Boulevard Home Depot location, testified an inventory check revealed a $999 generator was missing. He reviewed surveillance video from March 13 (which was played for the jury) and observed two men select a generator, remove the "Spider Wrap" security device, and exit without paying for the generator. The loss prevention officer testified he had seen one of the men in person on a separate occasion—when they had "crossed paths"—and identified him as defendant Ehm. The jury convicted Ehm on both counts.
Adrian testified that spider wrap is a security device that does not prevent an item from being removed from the shelves, but triggers an alarm "when people walk past a point of sale." It can only be removed with "a specific tool."
Counts 9 and 10 (shoplifting and petty theft): Home Depot loss prevention officer Jason testified an inventory check revealed a $599 pressure washer was missing from the El Cajon location. He reviewed surveillance video from March 22 (which was played for the jury) and observed a man he identified as Ehm leaving the store with the pressure washer without paying for it. He acknowledged that, when he first watched the video, he did not know the identity of the man, but that he had observed "multiple BOLOs out on this guy," and his colleague (a fellow loss prevention officer, Adrian) had told him "who it was" in the video. The jury convicted Ehm on both counts.
Counts 11 and 12 (burglary and grand theft): Loss prevention officer Adrian testified he was informed of a theft incident occurring on April 13 at the El Cajon location. He reviewed the surveillance video (which was played for the jury) and observed a man select a dolly, load a generator onto it, and leave without paying for the merchandise. He recognized and identified the man in the video as defendant Ehm. The jury convicted Ehm on both counts.
Counts 13 and 14 (burglary and grand theft): Loss prevention officer Rogelio reviewed surveillance video (which was played for the jury) of a man taking a $999 generator from the Fairmount Avenue Home Depot on April 16 without paying for it. The loss prevention officer testified he believed the man in the video was the same man he had seen on video taking a generator on March 4. The jury convicted Ehm on both counts.
Counts 15 and 16 (burglary and grand theft): Loss prevention officer Adrian was working at the Fairmount Avenue Home Depot location on April 18 when he observed Ehm enter the store. He proceeded to secretly surveil Ehm and observed him load a $1,999 generator onto a $50 dolly, remove the spider wrap from the generator, and proceed past the front registers without paying for the merchandise. Adrian identified himself as a loss prevention officer and chased Ehm into the parking lot, where Ehm "dropped the merchandise and took off running." Ehm got into a black Lincoln Town Car; Adrian noted the license plate number. Video of the incident was played for the jury. The jury convicted Ehm on both counts.
Counts 17 and 18 (burglary and grand theft): Loss prevention officer Jeffrey reviewed surveillance video (which was played for the jury) showing a man taking a $1,999 generator from the Saturn Boulevard location without paying for it on April 18. He identified the man as defendant Ehm, whom he recognized from previously seeing him at another Home Depot location. The loss prevention officer noted that he saw in the video a tattoo on Ehm's right arm; the same tattoo was observed in a photograph of Ehm. This witness also testified that he had seen Ehm in the courthouse hallway prior to trial and confirmed Ehm was the "same guy" he had previously seen in surveillance videos and BOLO flyers. The jury convicted Ehm on both counts.
Counts 19 and 20 (shoplifting and petty theft): On April 24, a Home Depot manager observed a man leaving the store with an $838 paint sprayer, a doormat, and doorknob set, but no receipt. He observed surveillance video of the incident (which was shown to the jury) and confirmed the man had not paid for the items. He was shown a photograph of Ehm and identified him as the man from the incident. The jury convicted Ehm on both counts.
Counts 21 and 22 (burglary and grand theft): On May 1, loss prevention officer Adrian observed that a generator was missing from inventory at the El Cajon location. He reviewed surveillance video (which was played for the jury) and recognized that it was defendant Ehm who entered the store, loaded a $999 generator onto a dolly, and exited the store without paying for the items. The jury convicted Ehm on both counts.
A San Diego County deputy sheriff testified that, during a traffic stop of a Mercedes Benz Ehm was driving, she documented text messages Ehm had sent directing the recipient to " 'do the same thing you did earlier,' " " 'pull to that exit where the stuff is,' " and " 'distract whoever is talking to me.' "
One of the texts stated, "Distract whoever is talking to me. Say excuse me sir [and] have them [w]alk with you to what you want to look at [and] [I']ll be gone." The Mercedes Benz had the same license plate as the one reported after the incident charged in counts 1 and 2 (January 10).
B. Applicable Law
"In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) A single person photograph, like a single-person lineup, "may pose a danger of suggestiveness, but such lineups or showups are not necessarily or inherently unfair." (People v. Clark (1992) 3 Cal.4th 41, 136.) An identification of a defendant at trial, which is based on an unduly suggestive and unreliable pretrial identification that posed a " 'very substantial likelihood of irreparable misidentification' " violates a defendant's constitutional right to due process. (Neil v. Biggers (1972) 409 U.S. 188, 197; see id. at pp. 196-198.)
"The defendant bears the burden of demonstrating the existence of an unreliable identification procedure." (Cunningham, supra, 25 Cal.4th at p. 989.) "On appeal, we review de novo, or independently, a trial court's conclusion whether or not an identification procedure is unduly suggestive or unreliable under the totality of the circumstances. [Citation.] If an identification procedure was not unduly suggestive, there is no violation of a defendant's due process right. [Citation.] If a defendant's federal constitutional right to due process is violated, reversal of the defendant's conviction is required unless the People show that error was harmless beyond a reasonable doubt." (People v. Chavez (2018) 22 Cal.App.5th 663, 675 (Chavez).)
C. Discussion
Ehm contends his due process rights were violated because the procedures used to identify him were unduly suggestive and the resulting identifications were unreliable. Specifically, Ehm objects to the detective's actions in "[s]upplying a name, a booking photo, and the statement that the license plate used in the burglaries was associated with Ehm."
We reject Ehm's argument that the procedures used were unduly suggestive. Fundamentally, we disagree with Ehm's contention that the detective suggested the identity of the suspect to the witnesses. The Home Depot loss prevention officers independently observed Ehm both in person and on surveillance footage, and circulated his image among colleagues on BOLO flyers created to warn others of the suspected thief. The Home Depot employees then provided the information they collected (including the suspect's license plate numbers) to law enforcement. Law enforcement used that information—provided by the witnesses—and compared it to Ehm's booking photo to give a name to the person that the Home Depot employees had already identified as the suspect. Testimony from loss prevention officer Adrian and the detective merely establishes when Adrian learned the suspect's true name, not that the police procedure was unduly suggestive. Providing the suspect's name does not negate the independent foundation for the witnesses' identifications, and does not demonstrate the procedures used were unduly suggestive.
For example, if Ehm had provided a false name to one of the witnesses and his true name was later determined by the police during the booking process, learning the defendant's correct name would not change the witness's ability to identify the suspect. Ehm repeatedly suggests the detective told Adrian he believed the defendant was guilty, and shared that belief regarding the defendant's guilt with the witnesses. The detective explained at trial, however, that he only provided a name to the Home Depot employee. For example, the following testimony was elicited during the detective's testimony on redirect: "Q. Sir, or Detective, to be clear, when [defense counsel] asked you that you told a witness who you thought it was, you just told them a name? [¶] A. Correct." This is consistent with Adrian's testimony at the preliminary hearing (set forth ante).
Ehm also contends the identification procedure was unduly suggestive because the detective gave a booking photo to the loss prevention officers, but this contention is not supported by the testimony he cites. Specifically, Ehm cites loss prevention officer Adrian's testimony at the preliminary hearing, which is set forth in detail ante. Adrian was describing information conveyed by the loss prevention officers to law enforcement—i.e., "the photos given to law enforcement and the plate number"—not, as Ehm contends, a booking photo provided to them by law enforcement. While it is true that the prosecutor and defense counsel seemed to suggest at a pretrial hearing that the police had given a booking photo to the loss prevention officers, there is nothing in the record (and Ehm cites nothing in the record) to support that claim.
Even assuming the detective had allowed the loss prevention officer to see Ehm's booking photo, we would reject Ehm's claim of error. Ehm equates law enforcement's use of the booking photo to a single photograph showup, which he contends "has long been understood to be suggestive." Our Supreme Court, in People v. Sanchez (2019) 7 Cal.5th 14, recently held that a single photograph showup is to some extent inherently suggestive, but it is not necessarily unfair; rather, all circumstances surrounding the showup must be considered. (Id. at p. 36 [holding that inherent suggestiveness of the single photograph showup was outweighed by other factors showing the reliability of the identification under the totality of the circumstances]; see also People v. Ochoa (1998) 19 Cal.4th 353, 413 [recognizing that a single person showup is not inherently unfair].)
Ideally, the detective here should have given the loss prevention officer a cautionary admonition before showing him a photograph of Ehm. But the absence of an admonition does not render the procedure per se unduly suggestive. " '[A] procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' " (People v. Pervoe (1984) 161 Cal.App.3d 342, 358.) Here, the loss prevention officer testified that hearing Ehm's name from the detective had no impact on his ability to recognize and identify the defendant. We agree that, under these circumstances, the procedures used (including any assumed sharing of the booking photo) were not unduly suggestive. (See People v. Contreras (1993) 17 Cal.App.4th 813, 820 ["Telling a witness suspects are in custody or questioning a witness further if the officer believes the witness actually recognized someone in the lineup is not impermissible."].)
Because Ehm has not established that the identification procedure used was impermissibly suggestive, we do not need to determine whether the identifications were reliable. (People v. Virgil (2011) 51 Cal.4th 1210, 1256.) Even if we assume the pretrial identification procedure was unduly suggestive, Ehm's claim would fail because the witnesses' identifications of Ehm were reliable under the totality of the circumstances. To determine whether the identifications were reliable under the circumstances we consider "the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (Cunningham, supra, 25 Cal.4th at p. 989.) Some witnesses observed Ehm in person and recognized him from these personal observations. Others viewed the suspect on video surveillance footage and recognized him as the perpetrator from the BOLO flyers circulated by their colleagues to alert them to a potential threat. Witnesses had the opportunity to view, either in person or on video, Ehm's appearance, stature, posture, and gait. Loss prevention officers testified that Ehm's mustache and "body posture" were distinctive, observed a mole under his eye, and described how they noted "the same characteristics" of the man from various videos. Courts "have long upheld admission of testimony identifying defendants in surveillance footage or photographs." (People v. Leon (2015) 61 Cal.4th 569, 601 (Leon) [no error in allowing a detective to identify defendant as the person shown in surveillance videos of two robberies].) " '[U]nlike the recollections and descriptions of a human witness, the recorded memory of the video surveillance camera has little serious potential to mislead. Indeed, its opposite potential to correct and enhance the reliability of an eyewitness identification in cases like the present would appear greater than its potential to cause an incorrect result.' " (People v. Johnson (2010) 183 Cal.App.4th 253, 273 [procedure of showing a witness video surveillance footage immediately before presenting photo lineup was not unduly suggestive].) The loss prevention officers, whose very job was to detect and prevent store theft, presumably paid critical attention in their observations of the suspect and passed the information they gleaned from their observations to the police, allowing the police to identify Ehm by name as the suspect the Home Depot loss prevention officers had described. At trial (and the preliminary hearing), the witnesses identified Ehm as the thief without equivocation, and based their identifications on their prior observations of Ehm in person or from the surveillance videos and BOLO flyers. Under these circumstances, we conclude the witnesses' identifications of Ehm were reliable.
Two of the loss prevention officers (Adrian and Jeffrey, who testified about counts 7, 8, 11, 12, 15, 16, 17, 18, 21, and 22) saw Ehm in person, identified him at the preliminary hearing, and identified him as the person they saw in court. Another witness (the store manager who testified about counts 19 and 20) saw Ehm in person and identified Ehm based on a photograph in court; he did not testify at the preliminary hearing. The remaining two loss prevention officers (Jason and Rogelio, who testified about counts 9, 10, 13, and 14) identified Ehm based on the surveillance footage they observed (People v. Larkins (2011) 199 Cal.App.4th 1059, 1067), and Jason also identified Ehm in person at the preliminary hearing.
Even assuming the witnesses' in-court identifications of Ehm were "tainted" as Ehm claims, we conclude any assumed error was harmless beyond a reasonable doubt. (See Chavez, supra, 22 Cal.App.5th at p. 675 ["If a defendant's federal constitutional right to due process is violated, reversal of the defendant's conviction is required unless the People show that error was harmless beyond a reasonable doubt."]; Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Here, the jurors themselves had the opportunity to see Ehm in person at the outset of trial, to view photos and video footage of him in court, and to view the surveillance footage of the various incidents. "[B]ecause the surveillance video was played for the jury, jurors could make up their own minds about whether the person shown was [the] defendant." (Leon, supra, 61 Cal.4th at p. 601.) Moreover, even absent the in-court identifications, there was ample evidence linking Ehm to the crimes. (People v. Sandoval (1977) 70 Cal.App.3d 73, 86 [error harmless in light of "ample untainted, highly probative evidence linking defendant to the [crimes]"].) The loss prevention officers recognized him at the time of the incidents from previously seeing him in person or on surveillance videos, or from BOLO flyers circulating photos of the suspect. Ehm's tattoo was visible on surveillance video and his cars were repeatedly observed at the crime scenes. In addition, the text messages—instructing someone to distract whoever he was talking to (presumably a Home Depot employee), so that he could get away (see fn. 6, ante)—and his flight shortly after the commencement of trial, were also incriminating. (See People v. Gomez (2018) 6 Cal.5th 243, 288 ["a defendant's absence from trial can support" an "inference of consciousness of guilt"].)
The jury was instructed: "If the defendant fled after he was accused of committing the crime, that conduct may show that he was aware of his guilt."
In sum, having reviewed the entire record independently, we conclude the procedures used to identify Ehm were not unduly suggestive and the witness identifications were reliable under the totality of the circumstances. We therefore reject Ehm's contention that his due process rights were violated when the trial court failed to exclude the identification evidence.
II.
Fines and Assessments
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Ehm contends that imposition of various fines and assessments, without a determination of his ability to pay, violated his constitutional right to due process. In particular, he challenges the imposed $9,000 in restitution fines (Pen. Code, § 1202.4, subd. (b)), $680 in court operations assessments (id., § 1465.8), and $480 in court facilities assessments (Gov. Code, § 70373). We conclude Ehm forfeited the claimed Dueñas error, and any alleged error was harmless beyond a reasonable doubt.
In the combined cases, the trial court imposed a total of $9,100 in restitution fines (Pen. Code, § 1202.4, subd. (b)), $680 in court operations assessments (id., § 1465.8), and $510 in court facilities assessments (Gov. Code, § 70373), as well as a criminal justice administration fee (Gov. Code, § 29550, subd. (a)(1)) and a theft fine (Pen. Code, § 1202.5). Ehm has limited his challenge to only the restitution fine ($9,000) and court operations ($680) and facilities ($480) assessments imposed in the lead case.
Dueñas involved an indigent, disabled, and homeless mother of young children who, due to illness, did not complete high school and subsisted on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) She objected on due process grounds to the trial court's imposition of various fines and fees. (Id. at p. 1162.) The trial court rejected her constitutional arguments; however, the Court of Appeal reversed, observing, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Courts of Appeal have reached different conclusions regarding the substantive merits of the Dueñas opinion, as well as the question of whether a defendant forfeits any claim of error by failing to raise the issue in the trial court. Here, we find forfeiture based on the fact that Ehm had the ability to object to imposition of the restitution fine—even before Dueñas was decided—but failed to do so. Citing Castellano, supra, 33 Cal.App.5th at p. 489, Ehm contends that we should decline to find he forfeited his claim because the state of the law at the time of sentencing suggested that such an objection would be futile. We disagree for reasons stated in this court's opinion in Gutierrez, where we held that a defendant who fails to object to a restitution fine above the statutory minimum forfeits any ability-to-pay argument. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We reasoned that the statute governing imposition of restitution fines "expressly permitted such a challenge" even before Dueñas. (Ibid.) The Dueñas decision does not compel a different conclusion on the issue of forfeiture in such circumstances. (Ibid. ["[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine [above the statutory minimum] by failing to object."].) The reasoning applies here, where Ehm had the statutory right to request that the trial court consider his ability to pay the restitution fine, set well above the statutory minimum (§ 1202.4, subd. (d)), but failed to do so. Because there is no basis to contend that an objection by Ehm would have been futile, he forfeited his inability to pay claim.
For example, the courts in People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; and People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted November 26, 2019, S258946, disagreed with Dueñas, whereas the court in People v. Belloso (2019) 42 Cal.App.5th 647, 654-656, review granted March 11, 2020, S259755 followed Dueñas. The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844 (Kopp) on the following issues: "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay?" Given our conclusion that Ehm forfeited his claim of error, we decline to address the validity of Dueñas or the Attorney General's contention that the restitution fine should be analyzed under the excessive fines clause. (U.S. Const., 8th Amend.)
While the courts in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano); People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson); and People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones) did not find forfeiture, the courts in People v. Lowery (2020) 43 Cal.App.5th 1046, 1053; People v. Keene (2019) 43 Cal.App.5th 861, 863-864; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155; and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464, found forfeiture.
Unlike here, the trial court in Dueñas imposed the statutory minimum restitution fine. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
We reach the same conclusion and find Ehm similarly forfeited any ability-to-pay challenge based on his failure to object to the remaining amounts imposed: the court operations assessment (Pen. Code, § 1465.8) and the court facilities assessment (Gov. Code, § 70373), which together total over $1,160. Ehm, who was 30 years old at the time of his offense, reported to the probation officer that, while he was currently unemployed, he was a high school graduate and had previously worked as a project manager at his father's architecture company for seven years, as well as prior work experience at Petco Park and Qualcomm Stadium. Ehm, who was the most knowledgeable person with regards to his personal circumstances and his ability to pay, failed to object to the imposition of this additional amount—an amount less than the restitution fine which, as noted, expressly permits an ability-to-pay challenge, yet still a substantial amount—and therefore forfeited his claim of error as to these amounts as well. (See Gutierrez, supra, 35 Cal.App.5th at pp. 1030-1031, 1033 ["[a]s a practical matter," if a defendant does not object to a maximum restitution fine based on an inability to pay, the defendant "surely would not complain on similar grounds" regarding additional fees or assessments].)
Even if Ehm had preserved his challenge based on Dueñas, and further assuming the trial court was required to consider Ehm's ability to pay the fines and assessments before imposing them, we conclude any error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; Jones, supra, 36 Cal.App.5th at p. 1035 [applying Chapman standard of harmless error analysis to Dueñas error].) In assessing whether a defendant has the ability to pay, courts may consider a defendant's present and future ability to pay. (See Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) Ehm was sentenced to four years of incarceration, received credit for 108 days, and was placed on two years of supervised release. Unlike Dueñas, Ehm has no evidence of any physical disability and has a history of sustained employment. Ehm does not claim to be indigent, and the record does not support the conclusion that he is. The probation report indicated that Ehm was "transient" at the time of the offenses; however, it also indicated he plans to reside with his girlfriend upon release from custody, and that he hoped to "get clean," "take some architecture courses," and return to work for his father. Thus, even assuming Ehm has a claim under Dueñas that was preserved for consideration on appeal, on this record, we conclude any error in failing to consider his ability to pay is harmless beyond a reasonable doubt. (See Johnson, supra, 35 Cal.App.5th at pp. 139-140 [because defendant had "ample time to pay" $370 in assessments from his prison wages while serving an eight-year sentence, any assumed due process violation in imposing assessments without taking his ability to pay into account was harmless beyond a reasonable doubt]; Jones, at p. 1035 [rejecting claim of Dueñas error where record showed any error was harmless].)
In his opening brief, Ehm fails to reference his probation report and simply avers "the record contains no information about appellant's ability to pay." In his reply brief, in response to the Attorney General's arguments premised on the probation report, he simply states his ability to pay upon release is unclear.
III.
The Abstract of Judgment Requires Correction
Ehm argues, and the Attorney General agrees, the booking fee of $308 in the abstract of judgment should be modified to conform to the oral pronouncement of judgment, which ordered him to pay $154. (Gov. Code, § 29550.) We agree that the oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185- 186.) We thus direct the abstract of judgment to be modified to reflect a Government Code section 29550 fee of $154 rather than $308.
DISPOSITION
The abstract of judgment shall be modified to reflect a Government Code section 29550 fee of $154 rather than $308. As modified, the judgment is affirmed.
GUERRERO, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.