Opinion
G056395
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES EMMETT SCHEINOHA, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos, Allison V. Acosta, and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 18WF0028) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos, Allison V. Acosta, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
James Emmett Scheinoha appeals from a judgment after a jury convicted him of four counts of identity theft, false representation to a peace officer, and possession of controlled substance paraphernalia. Scheinoha argues the following: the trial court erred by denying his motion to suppress his statements to police; the court erred by denying his motion to reduce his identity theft convictions to misdemeanors; and the matter must be remanded for the trial court to determine whether he has the ability to pay fees and a fine. None of his contentions have merit, and we affirm the judgment.
FACTS
I. Substantive Facts
David O. either lost his wallet or someone stole it. David received telephone calls advising him someone used his credit cards at Target, McDonalds, and a nearby motel. David went to the motel. David spoke with the clerk, obtained the room number of the person who used his card (room 133), and called the police.
Officers Michael Luu and Clements went to the motel about midday. After the officers spoke with the clerk, they went to room 133 and waited outside. When Scheinoha exited the room, officers detained him. Clements took Scheinoha's backpack, and Luu took his brown paper bag. They had him sit on the curb. When Scheinoha ignored the officer's requests to take the cigarette out of his mouth, Luu took it out and put it on the curb.
The record does not include the officer's first name.
Luu asked Scheinoha if he had identification, and he said "yes" and nodded toward his shirt pocket. Luu removed the wallet and found David's driver's license. The wallet also contained a motel room access card, and four debit cards, four credit cards, and two other cards in David's name. In response to Luu's questions, Scheinoha identified himself using David's first name, last name, and birthdate.
Luu searched the backpack and found two laptop computers, one an Acer, a syringe, and other items. Luu searched room 133 and found McDonald's food, a silver spoon with brown residue (consistent with heroin), and syringes.
Surveillance footage and a receipt established Scheinoha entered Target and used David's credit card to buy the Acer laptop for $436.99. Surveillance footage and a receipt also established he entered McDonalds and used David's credit card to buy food. II. Procedural Facts
An amended information charged Scheinoha with identity theft with a prior conviction (Pen. Code, § 530.5, subd. (c)(2), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1); identity theft (motel) (§ 530.5, subd. (a)) (count 2); identity theft (Target) (§ 530.5, subd. (a)) (count 3); identity theft (McDonalds) (§ 530.5, subd. (a)) (count 4); false representation to a peace officer (§ 148.9, subd. (a)) (count 5); and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a)) (count 6). The information alleged he suffered a prior serious and violent felony (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and two prior prison terms (§ 667.5, subd. (b)).
Before trial, Scheinoha filed a motion to exclude his statements to the officers pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and on the ground they were involuntary. The trial court denied the motion.
The jury convicted Scheinoha of all counts. He filed a motion to reduce counts 1 through 4, his four identity theft convictions, to misdemeanors (§ 1170.18). The trial court denied the motion.
After the trial court found true the two prior prison terms, the court sentenced Scheinoha to five years and four months in prison (count 3—32 months; count 2—16 months; and count 4—16 months). The court imposed and stayed the sentence on count 1, imposed concurrent sentences on counts 5 and 6, and struck the sentences on the prior prison terms. The court ordered him to pay the following: $300 restitution fund fine (§ 1202.4, subd. (b)); $300 parole revocation fine (stayed) (§ 1202.45); $40 court operations assessment fee (§ 1465.8); and $30 conviction assessment fee (Gov. Code, § 70373). In imposing the fees, the court stated the following: "[A] $70-per-count court operations and facilities fee. There are I believe six counts in this." The court awarded him 308 days of total credit.
DISCUSSION
I. Motion to Suppress
Scheinoha argues the trial court erred by denying his motion to suppress his statements to officers. We disagree. A. Background
At the hearing on Scheinoha's suppression motion, Luu testified he and Clements went to the motel about noon to investigate an identity theft. Officers spoke with David who told them someone used his credit cards at the motel, Target, and McDonalds. The officers went to room 133 and waited outside. When Scheinoha left the room, the officers requested he put his bags down, but he did not. Clements grabbed his right arm, and Luu, who was in uniform, grabbed his left arm, and they guided him four feet away to sit on the curb. Luu testified Scheinoha was detained at this point. Clements took a backpack from him, and Luu took a brown paper bag from him.
Scheinoha had a cigarette in his mouth. Officers asked him to take it out of his mouth, but he did not. When Luu took the cigarette out of his mouth, Scheinoha "flailed" his arms. Officers placed him in handcuffs for safety concerns. From the time Scheinoha left the motel room to this point was about 20 seconds.
Luu asked Scheinoha if he had identification. He nodded, said "'Yeah,'" and looked towards his left shirt pocket, which contained a wallet. Luu asked if the identification was in the wallet, and he said, "'Yeah.'" Luu removed the wallet and found David's identification. When Luu asked, Scheinoha identified himself as David. Clements asked whether he could remove the driver's license from the wallet, and Scheinoha said, "'You already looked at it.'" Clements said, "'That's why we were asking you if we could see it again.'" Scheinoha initially said, "'Yeah,'" but then said, "'No. You already looked at it. I am David O[.]'" From the time Scheinoha left the motel room to this time was about five minutes.
Luu testified he never displayed his firearm, taser, or baton. Officers arrested Scheinoha about an hour after they first made contact with him. Later at the police station, Luu advised him of his Miranda rights.
The trial court denied the motion to suppress. The court stated that although the lawfulness of asking identity questions where the charged offense was identity theft was an interesting issue, officers may ask basic questions when they lawfully detain somebody without implicating Miranda. Additionally, the court opined the fact officers handcuffed Scheinoha did not make his statements involuntary because it was initial contact and officers did not use force or coercion. B. Analysis
Scheinoha asserts the officers subjected him to a custodial interrogation. He contends that when the officers guided him to the curb a reasonable person would not feel free to leave and the officers elicited information about his identity that were relevant to the charged crime—identity theft. Because we conclude Scheinoha was not in custody, we need not examine the nature of the questioning.
"Miranda advisements are required only when a person is subjected to 'custodial interrogation.' [Citations.] The Miranda opinion itself permits '[g]eneral on-the-scene questioning as to facts surrounding a crime . . . .' [Citation.] A custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to the purpose of identifying a suspect or 'to obtain [sufficient] information confirming or dispelling the officer's suspicions. [Citation.]' [Citations.]" (People v. Davidson (2013) 221 Cal.App.4th 966, 970 (Davidson), italics added.)
"Whether a person is in custody is an objective test: the pertinent inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] The totality of the circumstance is considered and includes '(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.' [Citation.] Additional factors are whether the officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement, whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrogation techniques to pressure the suspect. [Citation.]" (Davidson, supra, 221 Cal.App.4th at pp. 971-972.) "Handcuffing a suspect during an investigative detention does not automatically make it custodial interrogation for purposes of Miranda. [Citations.]" (Id. at p. 972.) "On appeal, we defer to the trial court's factual findings supported by substantial evidence and independently determine from the factual findings whether appellant was in custody for Miranda purposes. [Citation.]" (Id. at p. 970.)
Davidson, supra, 221 Cal.App.4th 966, is instructive. In that case, a police officer saw defendant, who was holding a flat-blade screwdriver, pushing a motorcycle down a street and acting suspiciously. (Id. at p. 969.) The officer ordered defendant to put the motorcycle down, remove his backpack, and step towards him. Defendant put a flat-blade screwdriver on the seat. Concerned for his safety and that defendant might flee, the officer handcuffed him. The officer asked defendant, "'Is this your vehicle?'" and he replied he found the motorcycle. (Ibid.) The Davidson court rejected defendant's argument the officer subjected him to a custodial interrogation, explaining he was not in custody based on the following: (1) the detention lasted only two minutes; (2) the police officer was alone, (3) the officer questioned defendant on a public sidewalk; and (4) there was no evidence the questioning was aggressive, confrontational, accusatory, coercive, or sustained; and (5) the officer handcuffed defendant because of reasonable concerns for officer safety and that defendant might flee. (Id. at p. 972.)
Here, like in Davidson, Scheinoha was not in custody for purposes of Miranda. Officers handcuffed Scheinoha, but they did so for officer safety because he flailed his arms. An objective review of the other facts establishes there was no restraint on freedom of movement of the degree associated with a formal arrest. Although there was more than one officer, officers questioned Scheinoha in a public place during the day. Additionally, the encounter lasted only about five minutes. A brief, public, questioning is in stark contrast to a prolonged interrogation at the police station. (Davidson, supra, 221 Cal.App.4th at p. 972.) The officers' brief questions were limited to identifying Scheinoha to obtain sufficient information to confirm or dispel their suspicions.
In his reply brief, Scheinoha asserts the officers' questioning was accusatory, aggressive, and confrontational. The record before us does not support this claim, which is likely why Scheinoha does not provide any record references to support it. More troubling is Scheinoha's claim the officers "slammed" and "shoved" him to the ground. Again, he does not provide any citations to the record to support this baseless assertion. Luu testified he and Clements guided Scheinoha to the curb and had him sit there. We caution appellate counsel not to overstate or misrepresent the record under the cloak of effective advocacy because it, at the very least, violates court rules. (Cal. Rules of Court, rule 8.204(a)(1)(C)). Based on a totality of the circumstances, we conclude Scheinoha was not in custody and his statements were not coerced.
Assuming for the sake of argument there was error, Scheinoha was not prejudiced. "The erroneous admission of statements obtained in violation of Miranda is reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18 . . . , under which we inquire whether the error may be deemed harmless beyond a reasonable doubt. [Citations.]" (People v. Villasenor (2015) 242 Cal.App.4th 42, 68-69.) Here, without considering Scheinoha's statements, there was overwhelming evidence of his guilt.
When officers detained Scheinoha, he had David's wallet, including his drivers' license, debit cards, and credit cards. The evidence established Scheinoha used David's credit card to pay for a motel room that officer's observed him leaving. Surveillance footage showed him in Target and McDonalds, locations where David's debit and credit cards were used, purchasing property later discovered in his possession. Thus, we conclude any error in admitting Scheinoha's statements was harmless beyond a reasonable doubt. II. Proposition 47
Scheinoha contends the trial court erred by denying his motion to reduce counts 1 through 4 to misdemeanors because those offenses are like shoplifting (§ 459.5), and theft of access card information (§§ 484e, subd. (d)), which has been held to be a theft offense (§ 490.2, subd. (a)). Not so.
After briefing was complete, we invited the parties to file supplemental letter briefs on the effect, if any, of People v. Jimenez (2020) 9 Cal.5th 53 (Jimenez), and People v. Liu (2019) 8 Cal.5th 253, on this appeal.
In 2014, Proposition 47 reclassified certain drug-related and theft-related offenses to misdemeanors for eligible defendants. (Jimenez, supra, 9 Cal.5th at p. 62.) Proposition 47 added section 1170.18, subdivision (a), which permitted an eligible defendant serving a felony sentence for one of the enumerated theft or drug offenses to petition for recall of sentence and resentencing. The initiative added shoplifting (§ 459.5), and petty theft (§ 490.2) as new crimes.
Jimenez, supra, 9 Cal.5th 53, is instructive. In that case, our Supreme Court addressed whether a conviction for misuse of personal identifying information (identity theft) (§ 530.5, subd. (a)), could be reduced to misdemeanor shoplifting (§ 459.5). (Jimenez, supra, 9 Cal.5th at p. 58.) On two occasions defendant entered a check cashing store and cashed two checks under $950 made payable to himself from a company that did not issue the checks to defendant. (Id. at p. 59.) In addressing whether identity theft could be reduced to shoplifting, the court explained section 530.5, subdivision (a), "makes no mention of theft[,]" adding, "by its very terms, the offense of misuse of personal identifying information can be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it." (Jimenez, supra, 9 Cal.5th at p. 63, italics added.) The court opined the gravamen of the crime was not theft but use. (Id. at pp. 63-65.) The court reasoned identity theft and shoplifting are "fundamentally different[]" offenses, not sharing common elements. (Id. at p. 65.) For essentially the same reasons, the Jimenez court concluded identity theft could not be reduced to petty theft. (Id. at p. 70 [offenses do not share common elements].)
Here, Scheinoha claims his convictions on count 2 through 4, all violations of section 530.5, subdivision (a), should be reduced to shoplifting and petty theft. Jimenez squarely rejected these claims, and we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As the Jimenez court noted, the offense of identity theft requires both more and less of the elements of shoplifting and thus there was no perfect overlap between the offenses. (Jimenez, supra, 9 Cal.5th at p. 68.)
Scheinoha relies on People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), People v. Page (2017) 3 Cal.5th 1175 (Page), and People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), to support his claim the trial court erred here. In Jimenez, our Supreme Court addressed all the claims Scheinoha raises here and rejected them. (Jimenez, supra, 9 Cal.5th at p. 67 [Romanowski—theft of access card information like petty theft], p. 68 [Page—vehicle theft like petty theft], p. 69 [Gonzales—burglary like shoplifting].) The key difference was those cases concerned a perfect overlap between the charged burglary and the shoplifting charge (Gonzales, supra, 2 Cal.5th at p. 876), and the charged thefts and petty theft (Page, supra, 3 Cal.5th at p. 1184; Romanowski, supra, 2 Cal.5th at p. 908). Contrary to Scheinoha's claim, there was not an overlap between section 484e, subdivision (d), and section 530.5, subdivision (a), because the former is a theft offense and the latter is not. (Jimenez, supra, 9 Cal.5th at pp. 67, 71.) Thus, the trial court properly denied Scheinoha's motion to reduce counts 2 through 4 to misdemeanors.
As to count 1, Scheinoha maintains Jimenez does not preclude relief because it addressed section 530.5, subdivision (a), and not section 530.5, subdivision (c)(2), which could have been charged as shoplifting. Jimenez's reasoning applies with equal force to section 530.5, subdivision (c)(2).
The Jimenez court noted, "section 530.5 . . . resides in the chapter of the Penal Code titled 'False Personation and Cheats,' rather than the chapter titled 'Larceny.' [Citations.]" (Jimenez, supra, 9 Cal.5th at p. 64.) The court added, "The new shoplifting offenses are ill-suited to punish misuse of identifying information[]" (id. at p. 65), and addresses harms much broader than theft (id. at p. 64). Therefore, the trial court properly denied Scheinoha's motion to reduce count 1 to a misdemeanor. III. People v. Dueñas
Scheinoha asserts the matter must be remanded for the trial court to determine whether he has the ability to pay fees and a fine. Again, we disagree.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), an indigent mother of two who subsisted on public aid because she was unable to work due to cerebral palsy challenged the constitutionality of imposing mandatory court facilities and operations assessment fees and restitution fines without first determining the defendant's ability to pay them. The court held that imposing the fees and fine on an indigent defendant violated due process. (Id. at pp. 1168, 1171.) As to the court facilities and operations fees, which the Legislature intended to be revenue raisers and not punishment, the court reasoned imposing these fees on indigent defendants was tantamount to "inflict[ing] additional punishment." (Id. at p. 1166, capitalization omitted.) As to the restitution fine, which the Legislature intended to be additional punishment, the court explained imposing a restitution fine on indigent defendants punished them differently than wealthy defendants because it deprived them of the opportunity to obtain mandatory expungement of the conviction as a matter of right. (Id. at pp. 1170-1172.)
Much has been written throughout the state on whether Dueñas was correctly decided and whether Dueñas claims are forfeited. We need not weigh on these issues again because any error was harmless beyond a reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 (Johnson), citing Chapman v. California (1967) 386 U.S. 18, 24.)
"'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
We can infer Scheinoha has the ability to pay the fees and fine from probable future wages, including prison wages. (People v. Douglas (1995) 39 Cal.App.4th 1395, 1397 (Douglas); see § 1202.4, subd. (d) [ability to pay restitution fine includes future earning capacity].) "Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. [Citations.] The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b), restitution fine. [Citations.]" (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 (Aviles).)
Although no hearing was held or requested, the record suggests Scheinoha had an ability to pay the $720 in fees and a fine. There is no indicia of indigency in the record. The fact Scheinoha was represented in the trial court and on appeal by appointed counsel does not necessarily demonstrate an inability to pay. "[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine[]" or other fees imposed by the trial court. (Douglas, supra, 39 Cal.App.4th at p. 1397.)
We note both Scheinoha and the Attorney General state the fees and fine in question total $370. But the trial court imposed the $70 fee, i.e., a $40 court security fee and a $30 court facilities fee, for each conviction. The jury convicted Scheinoha of six crimes, and thus those fees total $420. The court also imposed a $300 restitution fine. His fees and fine total $720.
Nor is there any indication Scheinoha, a 39-year-old felon sentenced to prison for over five years, is in danger of becoming indigent while imprisoned such that he lacks the future ability to pay. As evidenced by his probation report, although Schenoha has a substance abuse problem, he indicated a desire to seek treatment. Before his substance abuse problems, he worked construction jobs for about five years, and worked on boats and cars. Although he suffered from a curable viral infection, it does not appear he suffered from any other health issues. These facts demonstrate Scheinoha is physically capable of working and earning money in custody and will be able to pay the $720 in fees and a fine from his future prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1077 [ability to pay from prison wages or monetary gifts from family and friends].) To the extent debt remains following his release, it is not reasonable to conclude he would be unable to pay that balance. Thus, Scheinoha will not be without the ability to pay fees and a fine while imprisoned.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.