Opinion
D070299
03-21-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINE J. SMITH, Defendant and Smith.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Christine Y. Friedman and Adrian Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD261083, SCD264065) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Christine Y. Friedman and Adrian Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Christine J. Smith of one count of receiving stolen property (Pen. Code, § 496, subd. (a)) and one count of obtaining personal identifying information of another person with intent to defraud (§ 530.5, subd. (c)(1)). The jury, however, hung on three counts of burglary (§ 460, subd. (a)) as to Smith.
Statutory references are to the Penal Code unless otherwise specified.
Eleven of 12 jurors were in favor of a guilty verdict for Smith on the burglary counts.
The jury found Smith's codefendant, Dwight Samuels, guilty on the burglary counts (§ 460, subd. (a)) as well as receiving stolen property (§ 496, subd. (a)) and resisting an officer (§ 148, subd. (a)(1)).
The court found true that Smith had previously been convicted of first degree burglary of an inhabited dwelling (§§ 459, 667.5, subd. (c)(21)), and found the prior conviction to be a serious felony prior as well as a strike prior.
The court sentenced Smith to prison for six years for receiving stolen property and one year in county jail, to run concurrently with the prison term, for obtaining personal identifying information. The court also ordered Smith to pay fees and fines. The court ordered that restitution be paid to the victims jointly and severally with codefendant Dwight Samuels in an amount to be determined.
Although Smith was present during jury selection, she did not appear for trial or sentencing. Thus, she was tried and sentenced in absentia.
Smith appeals, contending: (1) the trial court prejudicially erred by failing to provide a unanimity jury instruction; (2) the evidence is insufficient to support Smith's conviction for receiving stolen property; (3) the trial court prejudicially erred by failing to instruct on all the elements of receiving stolen property; (4) Smith's trial counsel was constitutionally ineffective; (5) cumulative error rendered Smith's trial unfair; (6) the trial court improperly sentenced Smith in absentia; (7) the trial court abused its discretion by not striking Smith's prior strike; (8) the trial court abused its discretion by imposing the upper term on her conviction for receiving stolen property; (9) the trial court erred by not staying Smith's sentence for obtaining personal identifying information with the intent to defraud; (10) the restitution order is improper because Smith caused the victims no economic harm; (11) the trial court mistakenly ordered the restitution fine in the incorrect amount; and (12) the parole revocation restitution fine must be suspended.
As we explain below, we conclude none of Smith's arguments have merit. Thus, we affirm.
FACTUAL BACKGROUND
In November 2013, Wallace Mallow and Elizabeth Amos lived in a house in Serra Mesa. On the afternoon of November 25, 2013, Mallow returned home and found the front door of the house was open and the house was "trashed." The items that Mallow and Amos immediately noticed were missing included 630 ounces of silver, Amos's iPad and iPod, Amos's jewelry, perfume, a Samsonite backpack, a Samsonite carry-on full of legal documents, and a camcorder. Mallow estimated that the total value of the stolen property was $24,000.
On December 10, 2013, Pemba Stedman returned to her Scripps Ranch home and found the front door open and her bedroom a mess. She noticed that a number of her belongings were missing, including jewelry, $500 in cash, credit cards, bank information, a small suitcase full of camera equipment, an Xbox 360, a Wii, a PlayStation, laptop, and Kindle. The value of the stolen items was about $7,000.
Around 11:00 a.m. that same day, Gary Gollehon, who lived three doors away from the Stedmans, saw a black or silver Chrysler Sebring parked at the end of the cul-de-sac, facing the Stedmans' house. The car left after about 15 to 20 minutes. When the car drove by, Gollehon saw a large peach-colored sun hat through the passenger window.
On December 13, 2013, Ryan Sey was at work when his wife, Rachelle, called between 1:00 p.m. and 1:30 p.m. to tell him that someone had broken into their home. The Seys discovered that many items were missing from their house, including a Playstation 3, Xbox 360, Wii, games, DVDs, a breast pump, laptop, iPad, two motorcycle helmets, digital cameras, jewelry, backpacks, and other items. The Seys reported to their insurance company that the value of the stolen items was slightly over $8,000.
Around 1:05 p.m. that day, Rachelle received an e-mail that said that her iPad had been reset to factory settings. Ryan used the Find My iPhone app to set up an alert that would notify him if Rachelle's missing laptop (a MacBook Pro) was accessed. Between 5:00 p.m. and 5:30 p.m., Ryan received an alert indicating that the laptop was at a Howard Johnson's motel on El Cajon Boulevard. After unsuccessfully attempting to get the police to go to that motel, Ryan decided to go there himself. Ryan's friend, Jeffrey Eckmann, picked him up, and they drove to the motel. They arrived around 6:30 p.m.
When Ryan and Eckmann arrived at the motel, they decided to set off an alarm on the laptop through the Find My iPhone app. Ryan and Eckmann went to opposite ends of the second floor of the motel, Ryan activated an alarm on the laptop, and the two men walked toward each other. Ryan thought he heard the alarm coming from a room he passed. Ryan wanted to sound the alarm again, but could not do so because someone had turned off the laptop.
As Ryan and Eckmann walked back to their car, they saw Smith walk out of room 218 from where Ryan thought he heard the alarm. Smith was carrying a bag over her shoulder and traveled down the stairs. She looked from side to side and walked back and forth for a while before going behind the motel, where she remained for a couple of minutes. When she reemerged, she no longer had the bag and walked to the front office.
Ryan went behind the motel and found the bag Smith was carrying propped up against a large storage container. Rachelle's laptop was inside the bag. Ryan then called the police.
After Smith went to the front office she returned to room 218. While Ryan was on the phone with police dispatch, Smith came back out of the room, wearing different clothes than she was wearing before.
Smith walked over to a Chrysler Sebring convertible, opened it, got in, and starting rummaging around. She then exited the car and returned to the room.
Shortly thereafter, police officers arrived. Officer Jill Hupp walked behind the motel with Ryan to retrieve the laptop. They then returned to the parking lot in front of the hotel.
At this time, Dwight Samuels came out of room 218 and started walking toward the Sebring. Hupp walked up to Samuels and told him that he was being detained pending an investigation regarding room 218. Samuels denied that he was staying in room 218 and began getting very agitated, prompting Hupp to handcuff him. Smith then walked out of room 218 and went down the stairs. Hupp stopped Smith and, after Smith shoved her hand in her purse, handcuffed her.
A patdown search of Smith revealed a checkbook tucked in the waistband of her pants. The checkbook bore the name of Pemba Alexandrine Stedman. The purse Smith was carrying contained a silver iPad in a pink Hello Kitty case, a black box with some jewelry inside, and a clear trash bag containing a T.J. Maxx credit card and a Pennsylvania driver's license, both in the name of Pemba Stedman.
The Sebring was registered to Samuels. The car contained a Sony Cyber-shot camera, some jewelry, and a Wii gaming system. Amos later identified the camera as hers.
There were bags and items strewn all about the motel room. Ryan recognized a number of things that were taken from his house. On the top of the desk was his wife's jewelry box. However, most of his wife's real jewelry was missing. One loose diamond from her jewelry box was sitting on the desk. The diamond was three-quarters of a carat and had been appraised the previous summer at $1,000.
Wicker baskets taken from the Sey home were on the floor between a chair and the bed closest to the door. The baskets contained Ryan's old laptop, DVDs, PlayStation 3 games, and a Gameboy Advanced. The Seys' Apple TV remote was resting on the bed, close to the chairs.
A number of bags and backpacks were located between the far wall and the second bed. Items found among the bags included: Ryan's motorcycle helmet bag containing a Wii system and games; Rachelle's backpack containing a PlayStation 3, games, and controller; a backpack containing Ryan's Xbox 360, games, controllers, and cords; Ryan's gray Tamarack camera bag containing Ryan's camera and digital SLR lens; and Ryan's messenger bag.
The Seys recovered about 80 percent of what was taken. The value of the items found inside the motel room was at least $7,000. Ryan estimated that the MacBook Pro laptop was worth about $1,000.
There were many items found inside the room that did not belong to the Seys. Under the desk were multiple suitcases. One suitcase was filled with jewelry. Another was filled with iPhones and iPods. Other bags in the room contained miscellaneous jewelry and watches, and one bag contained another laptop.
One of the suitcases had a baggage tag with Samuels's name on it. A San Diego Police Department tow form listing Samuels as the registered owner of a vehicle was resting on top of Ryan's personal documents on one of the beds. The police also found an iPhone with a picture of Samuels's face as the lock screen.
A purse was found on or near the bed closest to the door. The purse contained Smith's driver's license. A duffel bag that contained multiple jewelry boxes with jewelry and watches also contained a DMV renewal receipt bearing Smith's name.
Male and female clothing was found in the room. A bra and a parka with fur trim on the hood were resting on one of the chairs. On the desk were two take-out containers, a bottle of women's cologne and a bottle of men's cologne.
The iPad in the Hello Kitty case was impounded with other evidence in the case. Detective Brian Avera contacted Apple with the serial number of the iPad, and Apple said that they would contact the owner. Shortly afterwards, Amos called Avera to claim her iPad. On December 27, 2013, Amos went to the property room to retrieve her iPad. Amos called Avera from the property room to let him know that there were photographs of people she did not know on the iPad.
Avera asked Amos to bring the iPad back to him. The screensaver on the iPad was a picture of Smith. There were dozens of photographs of Smith and Samuels on the iPad. In some of the photographs of Smith, she is wearing a parka with a fur-lined hood, similar to the coat found on the chair in the motel room. A couple of the photographs of Smith included a phone number, (858) 860-4788.
In addition to the photographs of Smith and Samuels, the iPad contained 2,133 e-mails, many of them for Smith. Facebook and iTunes were set to the Samuels's account. Facetime was linked to Smith's Yahoo account.
An internet search of (858) 860-4788, the telephone number shown in the photographs of Smith on the iPad, led to the discovery of advertisements showing a picture of Smith and listing the same number. Samuels was the subscriber of this telephone.
The telephone number for the iPhone found at the motel was (858) 274-1711. Samuels was the subscriber of this phone as well.
On November 25, 2013, December 10, 2013, and December 13, 2013, the dates of the Mallow-Amos, Stedman, and Sey burglaries, respectively, cell tower records showed that the cellphone associated with (858) 860-4788 and the cellphone associated with (858) 274-1711 communicated with each other near the crime scenes only around the time of the burglaries. Afterwards, the cellphones left the areas where the burglaries took place and did not return.
DISCUSSION
I
THE FAILURE TO GIVE A UNAMINITY INSTUCTION ON
THE COUNT FOR RECEIVING STOLEN PROPERTY
Smith first contends that the trial court erred when it did not provide a unanimity instruction on the count for receiving stolen property. "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Smith argues that three burglaries took place on different dates, supporting the inference that the stolen property from each of the burglaries may have been received on different dates as well. Indeed, when Smith was arrested, she had Stedman's checkbook tucked in the waistband of her pants. In the purse she was carrying at the time of her arrest, the police found Amos's iPad and Stedman's credit card and driver's license. In addition, before her arrest, Smith carried Rachelle's laptop out of the motel room and deposited it behind the motel. Therefore, she insists that she personally handled five items from three different burglaries at different times and could have received these items at least three different times. Accordingly, she asserts that because the prosecution did not specify which alleged act constituted the offense, the court had a duty to give a unanimity instruction sua sponte. (See People v. Riel (2000) 22 Cal.4th 1153, 1199.)
Here, we need not determine whether the court should have given a unanimity instruction to resolve this issue because any such error would be harmless, even under the stringent standard of Chapman v. California (1967) 386 U.S. 18.
Smith admits that her defense to the five items of property she handled was that she purchased these items. The failure to give a unanimity instruction is harmless "where the jury's verdict implies that it did not believe the only defense offered." (People v. Diedrich (1982) 31 Cal.3d 263, 283.) In People v. Parsons (1984) 156 Cal.App.3d 1165, the court held this harmless error analysis to be particularly apt when the defendant offered no defense at all. (Id. at p. 1174.) It concluded, "In this case, we find that the appellant was unable to proffer any defense, but merely put the People to their proof. . . . [¶] The jurors, therefore, could not have reasonably disagreed as to which act the appellant was guilty of and yet convict him, simply because there was no defense proffered to any one or more items of stolen property received." (Ibid.)
The same reasoning applies here where Smith's attorney, during closing, simply alluded to the possibility that Smith purchased the stolen items. On appeal, there is no citation to the record where there was evidence offered that Smith made separate purchases for the different items. At best, her attorney argued that Smith purchased the items at the hotel. Because the jury found Smith guilty of receiving stolen property, it obviously rejected Smith's only theory of defense. (See People v. Davis (2005) 36 Cal.4th 510, 562.) Thus, the failure to provide the unanimity instruction was harmless. (See People v. Diedrich, supra, 31 Cal.3d at p. 283.)
II
THE FAILURE TO INSTRUCT AS TO ALL THE ELEMENTS OF RECEIVING STOLEN
PROPERTY AND SUBSTANTIAL EVIDENCE THAT SMITH POSSESSED THE
PROPERTY IN THE MOTEL ROOM
Smith next contends that the trial court committed prejudicial error by not instructing the jury as to all the elements of the offense receiving stolen property. The elements of that offense are the defendant: (1) received stolen property; (2) knew the property was stolen; and (3) knew of the presence of the property. (§ 496, subd. (a).) For that offense to be a felony, the value of the stolen property must exceed $950 on the date of the offense. (Ibid.)
At trial below, the court instructed the jury with the following version of CALCRIM No. 1750:
"The defendants are charged in Count 4 with receiving stolen property.
"To prove that a defendant is guilty of this crime, the People must prove that:
" 1. The defendant received property that had been stolen;
"2. When the defendant received the property, he or she knew that the property had been stolen;
"AND
"3. The defendant actually knew of the presence of the property.
"Property is stolen if it was obtained by any type of theft, or by burglary or robbery.
"To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people can possess the property at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."
However, the court's instruction did not include language necessary for a conviction of the felony offense of receiving stolen property: "If you find the defendant guilty of receiving stolen property, you must then decide whether the value of the property received was more than $950. If you have a reasonable doubt whether the property was received has a value of more than $950, you must find this allegation has not been proved." (CALCRIM No. 1750.) Despite this omission, the jury convicted Smith of felony receiving stolen property.
A trial court must adequately instruct the jury on all elements of the law relevant to the case. (People v. Miller (1999) 69 Cal.App.4th 190, 207.) Here, it is undisputed that the trial court did not instruct the jury on all the elements of the felony offense of receiving stolen property. As such, we must analyze if this error was harmless.
The failure to instruct on an element of an offense is harmless if the prosecution proves beyond a reasonable doubt that no substantial evidence supports a contrary finding on the omitted element. (People v. Mil (2012) 53 Cal.4th 400, 417-419 (Mil).) In Mil, the California Supreme Court stated that in the context of such instructional error, "Neder[ v. United States (1999) 527 U.S. 1 (Neder)] instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' " (Mil, supra, at p. 417.) Our high court further clarified the appropriate harmless error analysis as requiring us to answer the question: " 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
Where the omitted element of the offense was subject to significant dispute at trial, the harmless error analysis commonly focuses on examining "whether 'the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions.' [Citation.] A reviewing court considers 'the specific language challenged, the instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a reasonable jury . . . .' " (People v. Bell (2009) 179 Cal.App.4th 428, 439.)
However, in other cases, such as Neder, supra, 527 U.S. 1, where there is no indication that other instructions given to the jury might support an implied finding on the omitted element, and no finding can be inferred from the jury's verdict, the harmless error analysis focuses instead on whether, considering the trial record as a whole, there appears to be any reasonable possibility that the jury might have found in defendant's favor on the omitted element if asked to address it. Thus, in Neder, the United States Supreme Court considered whether the court's failure to instruct the jury that it must find the false statements made by defendant on his tax return to be "material" for purposes of the charged crime of filing false income taxes, amounted to harmless error. (Id. at p. 16.)
We have exhaustively reviewed the trial evidence to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element" that the value of stolen goods exceeded $950. (Neder, supra, 527 U.S. at p. 19; Mil, supra, 53 Cal.4th at p. 417.) We conclude no rational juror could find that the value of the stolen property received by Smith was less than $950.
Smith was seen carrying both Amos's iPad and Rachelle's laptop. During cross-examination, Ryan testified that he told the police that the value of the laptop was $1,000. However, Ryan admitted that his $1,000 estimation to the police was a guess "at the time[.]" He further agreed that he did not know the exact price of the laptop, but explained that he had owned Apple products since he was 15 years old and knew that a new MacBook Pro costs more than $1,000. Ryan did not testify regarding the age of Rachelle's MacBook Pro laptop.
Subsequently, Ryan explained that he had looked up the price of a MacBook Pro in regard to his insurance claim and determined that the value was around $1,300. There does not appear to be any evidence in the record regarding the value of the iPad.
Although Smith's trial counsel cross-examined Ryan about value of the MacBook Pro, counsel did not offer any evidence regarding the laptop's value. At most, Smith's counsel asked Ryan if he knew the laptop was worth more than $900. Ryan estimated the value of the MacBook Pro was between $1,000 and $1,300.
The value of stolen property is determined by its "reasonable and fair market value." (§ 484, subd. (a).) The owner of the stolen property may testify as to the value of that property, regardless whether the owner is an expert in the valuation of that particular property. (See People v. Henderson (1965) 238 Cal.App.2d 566, 566-567.) In addition, a juror may rely on his or her common knowledge regarding the value of consumer goods. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1366 [explaining that although the prosecution offered no evidence regarding the current value of a BMW, the jurors could rely on their common knowledge that late model BMWs have a substantial market value].)
Ryan's testimony coupled with the common knowledge regarding the value of Apple products supports the conclusion that the combined value of these two items exceeded $950. The defense presented no other contrary evidence regarding value. This record thus leads us to conclude that a rational juror could not find that the value of these two pieces of stolen property was less than $950.
Additionally, there was uncontradicted evidence that the stolen goods in the motel room far exceeded $950. The motel room contained about 80 percent of what was taken from the Sey residence. The items included Rachelle's jewelry box, some jewelry, a loose diamond, a camera, an old laptop, a Gameboy Advanced, a Wii system, a PlayStation 3, an Xbox 360, games, controllers, and DVDs.
Rachelle's loose diamond alone was appraised at $1,000 in the summer of 2013. Ryan estimated that the value of the items taken from his home and found in the motel room was at least $7,000. The defense did not offer any evidence regarding the value of these stolen items.
Here, Smith does not challenge the value of the items found in the motel room. Instead, she argues that the evidence was insufficient to prove that she possessed the property in the motel room and car. We disagree.
Because it has no bearing on our opinion here, we do not address Smith's claim that the evidence was insufficient to show that she possessed the property found in Samuel's car.
We apply a substantial evidence standard of review to assess the sufficiency of the evidence. We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Possession of stolen property may be actual or constructive and need not be exclusive. (People v. Land (1994) 30 Cal.App.4th 220, 223.) Mere access or proximity to stolen goods is not sufficient to infer possession—dominion and control must be established. (People v. Myles (1975) 50 Cal.App.3d 423, 429.) Although something more than presence or access must be shown to infer possession, "the necessary additional circumstances may, in some fact contexts, be rather slight." (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
The evidence adduced at trial clearly established that Smith along with Samuels, had dominion and control over the stolen items in the motel room. Smith was in the motel room with Rachelle's MacBook Pro and all of the other stolen property when Ryan sounded the alert on the laptop. Smith then exited the room to discard the laptop, but returned to the room and changed her clothes. After a brief period of time, Smith left the room to go to Samuels's car, and then returned to the room.
A purse containing Smith's driver's license was in the room. One of the duffel bags in the room contained multiple jewelry boxes, jewelry, and watches in addition to a DMV renewal receipt bearing Smith's name.
One of the suitcases had a baggage tag with Samuels's name on it. Samuels's name was also on a tow form resting on top of Ryan's personal documents, which were scattered on one of the beds. A picture of Samuels's face was the lock screen of an iPhone found in the room.
Both male and female clothes were found in the room. A bra and a parka with fur trim on the hood were lying on one of the chairs. The parka looks like a coat Smith was wearing in some of the photographs on Amos's iPad. On the desk were a bottle of women's cologne and a bottle of men's cologne as well as two take-out containers.
In addition, there was evidence that Smith and Samuels had a personal relationship. Amos's iPad contained multiple pictures of both Smith and Samuels, and based on account settings on the iPad, it was clear that both Smith and Samuels had been using the device. Such evidence gives rise to an inference of possession. (See People v. Land, supra, 30 Cal.App.4th at p. 227.)
The defense theory during trial was that Samuels and Smith were present merely to buy stolen items. To this end, during closing argument, Samuels's attorney argued that the motel room belonged to Marcus Goodewillie, who had registered for the room with his driver's license. In addition, Samuels's attorney stated that the motel room was just a place for people to browse items, pick out things to purchase, and then leave. As such, Samuels's attorney suggested that it was reasonable to believe that Smith and Samuels were there to just purchase some cheap things.
However, the fact that the room was registered to someone else does not contradict the overwhelming evidence that Smith and Samuels were staying in the room together. Nothing bearing Goodewillie's name was found in the room. Moreover, no one other than Smith or Samuels was seen coming in or out of the room on December 13, 2013.
Smith also insists that no DNA or fingerprints linked her to the stolen property in the room. This argument is not of the moment as the police did not collect DNA swabs or dust for prints on the items in the motel room.
As explained by a prosecution witness, it would have taken an inordinate amount of time to collect and test the items found in the room because of the number of those items.
We also are not impressed by Smith's contention that the fact she possessed very little money indicated that she was not the person in control of the stolen property because thousands of dollars of items were missing from the property taken from the three burglaries. This lack of cash is unavailing. It does nothing to negate the mountainous evidence that Smith, along with Samuels, was staying in the motel room and possessed the stolen items found there.
For the above reasons, we conclude that the trial court's error in omitting an instruction regarding an element of the felony offense of receiving stolen property was harmless and substantial evidence supports a finding that Smith possessed the stolen property in the motel room.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Smith claims here trial counsel was constitutionally ineffective because he did not request appropriate jury instructions and did not present a defense warranted by the evidence. Specifically, Smith maintains her attorney's representation of her was ineffective because he failed to request a unanimity instruction as to the count for receiving stolen property and did not ask the court to instruct the jury that the value of the stolen property had to exceed $950 for the jury to convict Smith of a felony. In addition, Smith argues that her counsel was ineffective for not offering any evidence as to the value of the stolen items.
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas); see Ray, supra, at p. 349.)
On the record before us, Smith has not shown that she was prejudiced by her trial counsel's decisions. As we discuss above, we found any errors related to the jury instructions to be harmless. Therefore, Smith's argument that her trial counsel's failure to request additional jury instructions does not give rise to a valid ineffective assistance claim. (See Strickland, supra, 466 U.S. at p. 688.)
Likewise, we are not persuaded by Smith's claim that her trial counsel was ineffective for not offering evidence as to the value of the stolen items. We generally defer to the tactical decisions of trial counsel. (See People v. Scott (1997) 15 Cal.4th 1188, 1212; People v. Holt (1997) 15 Cal.4th 619, 703.) "[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " (Lucas, supra, 12 Cal.4th at p. 437, quoting Strickland, supra, 466 U.S. at p. 689.) There may very well have been a sound tactical purpose to offer no evidence challenging the value of the stolen items. Perhaps, Smith's trial counsel thought such a challenge would lead the jury to assume that Smith did indeed receive the stolen items as opposed to purchasing them as he argued. Further, given the nature of the items stolen (e.g., Apple computer products, jewelry, gaming systems, suitcases), the number of stolen items, and the value of those items, it appears it would have been fruitless to argue that the combined value was less than $950. Thus, on the record before us, we are satisfied that Smith has not proven that her trial counsel was constitutionally ineffective for failing to offer evidence as to the value of stolen property.
IV
CUMULATIVE ERROR
Smith contends the cumulative effect of the asserted errors rendered the trial so unfair as to violate her federal and state constitutional rights to due process warranting reversal of the judgment. Although we found that the trial court erred in omitting a certain jury instruction or a portion of a jury instruction, we determined such errors to be harmless. Even considering the errors together, we find them harmless and do not warrant reversal under the cumulative error doctrine. (See People v. Burgener (2003) 29 Cal.4th 833, 884 ["Defendant has demonstrated few errors, and we have found each possible error to be harmless when considered in isolation. Considering them together, we likewise conclude their cumulative effect does not warrant reversal of the judgment."].)
V
THE SENTENCING OF SMITH IN ABSENTIA
Smith insists the trial court erred in sentencing her in absentia because reasonable diligence was not used to locate her. We reject this contention.
The jury was selected and sworn on January 14, 2016, and trial was scheduled to commence on Tuesday, January 19, 2016. Although Smith was present for the selection of the jury, she did not appear for her trial. Smith had one of her trial counsel's cellphone number and e-mail address, but her counsel had not heard from her since January 14.
Smith's trial counsel unsuccessfully tried to contact Smith at a telephone number Samuels provided. Neither Smith's counsel nor the prosecutor's office had an address for Smith.
Samuels told the court that Smith usually stayed at the La Quinta Mission Valley or the La Quinta Carlsbad, and that he had dropped her off at the La Quinta in Mission Valley on Saturday around 4:00 p.m. The court ordered the parties to send an investigator to the hotels.
One of the defense investigators learned that Smith had checked out of the La Quinta in Mission Valley on Friday. The defense investigators also contacted area hospitals and custodial facilities outside of San Diego County.
The court issued a warrant for Smith's arrest and ordered that bail be forfeited. The court then recessed until the following day.
The next day, a prosecution investigator informed the court of the steps he had taken to locate Smith. He explained that he contacted the San Diego Police Department, which was going to disseminate a "Be on the Lookout" (BOLO) flyer for Smith. He also entered Smith's name in the Officer Notification System of the Automated Regional Justice Information System so that if any officer came across Smith, he or she would know to contact the investigator.
The investigator also gave the BOLO flyer to a colleague for dissemination within the Human Trafficking Task Force. Additionally, Stewart contacted Smith's bail bond company so that company could try to locate her.
The defense investigators attempted to send Smith a private message through her Facebook account. However, shortly after they sent the message, Smith's Facebook account was shut down.
When Smith could not be located, the court commented:
"[Smith] was not happy about proceeding with the trial. . . . [¶] She obviously is aware that her trial is in progress because she was here when the jury was selected. She has a prior strike which demonstrates her prior knowledge and sophistication with regard to the judicial process and the necessity for appearances. [¶] Given everything that I've heard and the declarations that have been submitted by her attorney and the testimony from the district attorney investigator, a thorough search has been made to locate her, and the Court finds given everything that we have done, I ordered that we not be in session a whole day to give everyone an opportunity to try to locate her, so given all of that, I find that Miss Smith's absence is knowing and voluntary; therefore, the trial will continue without her, and I will instruct the jury that her absence is not evidence and cannot be considered by them in any way."
On January 26, 2016, Samuels did not appear for trial. The court found that Samuels was voluntarily absent and ruled that he would be tried in absentia as well.
Neither Smith nor Samuels appeared by the time of sentencing. The prosecutor explained that in addition to the BOLO notices sent out to law enforcement, the prosecution's investigators were periodically checking the "Who's in Jail" screen and had sent notices that they be notified if and when Smith or Samuels were arrested. The District Attorney's Office filed additional cases for Smith and Samuels based on their failure to appear and issued warrants in those cases as well.
The prosecutor received some information about new Facebook accounts set up by Smith and Samuels. Samuels posted on his new Facebook account on February 1, 2016. One of his Facebook friends was someone going by the name of "Nita Smi," who had Smith's picture as her profile picture. The District Attorney's Office passed on the Facebook information to the Fugitive Task Force and every other law enforcement agency. Samuels was on parole, so the prosecutor personally notified the parole office regarding his disappearance.
The court found that the prosecution had "exercised diligence in attempting to secure the presence of" Smith and Samuels. The court emphasized that Smith and Samuels had ignored the court's order that they return to trial and had made no effort to contact the court or their attorneys. As such, the court determined that it would be in the interest of justice to sentence Smith and Samuels in absentia, noting: "I think if we didn't under all these circumstances, we would simply allow them to undermine the administration of justice, and . . . I think that we would just be playing into whatever game they decided to play and just see if they could benefit from failing to appear, so I'm not going to allow them to do that."! (12 RT 1304)!
Section 1193, subdivision (a) provides that upon being convicted of a felony, the defendant shall be personally present when judgment is pronounced against him or her unless "after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence."
Relying on People v. Brown (1951) 102 Cal.App.2d 60 (Brown), Smith contends the prosecution did not exercise reasonable diligence to locate her. Smith's reliance on Brown is misplaced and the record of the prosecution's extensive efforts to locate Smith belies Smith's position here.
In Brown, the court determined that there was not a sufficient showing of due diligence. There, the defendant was not present at her hearing for probation and sentence; her bail was forfeited and a bench warrant was issued; and she was not present again five days later, whereupon judgment was pronounced. (Brown, supra, 102 Cal.App.2d at p. 62.) The court explained, "For all that the record shows, the defendant may have been kept away from court by some untoward circumstances beyond her control. [¶] In such cases as this the record must show that [a] diligent effort has been made to find the defendant, and the reason for his absence." (Id. at p. 63.) In other words, the record of any effort to locate the defendant was almost nonexistent.
Here, in contrast to the facts in Brown, supra, 102 Cal.App.2d 60, the prosecution's effort to locate Smith was thorough. Investigators tried to locate Smith at her last known location, BOLO notices were disseminated to various law enforcement agencies, Smith's name was entered in the Officer Notification System, investigators were monitoring if Smith was booked into any jail, leads from Facebook were investigated, and Smith's bail bonds people were notified.
Nevertheless, Smith focuses this court on the 28 days between the jury verdict and her sentencing, arguing that the prosecution did not attempt to locate her during that time. The record suggests otherwise. BOLO notices and notices to alert investigators if Smith was picked up constituted ongoing efforts to find Smith. Also, the District Attorney's Office continued to monitor whether Smith was booked into jail and followed up on new information regarding recent Facebook activity. The prosecution's communication with the parole office also indicated the prosecution's effort to find Smith because there was a possibility that Smith was with Samuels. Against this foundation, it can hardly be said that the prosecution's efforts here are analogous to those the court found wanting in Brown, supra, 102 Cal.App.2d 60. Indeed, in Brown, the court was concerned that the defendant's absence might have been attributable to circumstances beyond her control, such as a hospital admission. (Id. at pp. 62-63.) Here, there is nothing in the record that gives us similar pause.
We are satisfied the prosecution exercised reasonable diligence to locate Smith. It is clear that Smith did not want to appear at her trial or wish to be found. Under these circumstances, we conclude the trial court did not error in sentencing Smith in absentia.
VI
THE COURT'S FAILURE TO STRIKE SMITH'S PRIOR STRIKE
Smith's counsel made a Romero motion, requesting the court to strike one of the prior strikes the court found she suffered. The court, noting Smith's decision "to have a life of crime" and her criminal partnership with Samuels, found that Smith did not fall outside the spirit of the Three Strikes Law. Thus, the court denied Smith's Romero motion. Smith maintains the trial court abused its discretion. We disagree.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We review a trial court's decision not to strike a prior conviction pursuant to section 1385 under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also Romero, supra, 13 Cal.4th at pp. 530-531.) Under this standard, a " ' "decision will not be reversed merely because reasonable people might disagree" ' "; rather, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances[, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible facts in declining to dismiss [citation], [or where] 'the sentencing norms [established by the Three Strikes Law may, as a matter of law,] produce an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Carmony, supra, 33 Cal.4th at pp. 377-378.)
A trial court must also " 'consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies' [citation]" before exercising its discretion to strike a felony conviction. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161.)
Smith contends her criminal history and character place her outside the Three Strikes Law sentencing scheme. We disagree.
Smith points out that her criminal background is "not lengthy, serious, or violent" and her current conviction was for a nonviolent offense. Smith's criminal history included a conviction in 2009 for burglary, her conviction on the two counts in the instant action, and a conviction for petty theft in 2014. Although Smith's criminal history is not particularly violent, Smith has provided no authority that supports her position that a criminal history like her own compels a court to grant a Romero motion. Alternatively stated, Smith's criminal history is a factor for the sentencing court to consider here, but it does not mandate that the court grant her Romero motion.
Smith also claims that her burglary offense was committed "in the safest possible manner possible because she immediately abandoned the burglary when she encountered the home's resident[.]" Smith's contention, however, overlooks that the Legislature saw fit to specifically enumerate burglary as a serious felony. (§ 667.5, subd. (c)(21).) In fact, our high court noted that burglary sets the stage for violence, " ' "Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation--the danger that the intruder will harm the occupants in attempting to perpetuate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence." ' " (People v. Hughes (2002) 27 Cal.4th 287, 355, quoting People v. DeRouen (1995) 38 Cal.App.4th 86, 91.) The fact that Smith ceased trying to enter the residence when the victim yelled does not change the inherent potential of violence that the crime of burglary invites. Indeed, her characterization of her burglary offense as committed in the "safest possible manner" can be attributable more to chance than Smith's alleged peaceful and law abiding character.
Smith focuses on the fact that the probation report did not list her successful completion of probation as a circumstance in mitigation. However, during the sentencing hearing, Smith's counsel argued that Smith's successful completion of probation was a factor in favor of striking her prior strike conviction. Thus, when considering Smith's request to strike her strike prior, the court was aware she successfully completed probation. Moreover, the fact that Smith successfully completed her probation is a mitigating factor for a court to consider (Cal. Rules of Court, rule 4.423(b)(6)), but that one factor is not dispositive.
In addition to failing to list her successful completion of probation, Smith claims that the probation report offered the trial court "erroneous guidance." To this end, she notes that the probation report listed Smith's convictions being of increasing seriousness and that her conduct indicates that she is a serious danger to society. She explains that receiving stolen property is significantly less serious than burglary and that she is not a danger to society. We are not persuaded.
Ostensibly, Smith is correct that burglary is considered a more serious felony than receiving stolen goods. However, this general premise does not render the probation report false. Here, Smith was previously convicted for burglary. She had a relationship with Samuels who was convicted in the instant action of three counts of burglary. Although the jury hung (11 to one) as the three counts of burglary against Smith, it is clear that the stolen goods in Smith's possession were from the three burglaries of which Samuels was convicted. In addition, there is evidence in the record that Smith was in Samuels's car when that car was leaving the scene of one of the burglaries. Further, Smith's proclivity to be directly involved in burglaries and/or accept the ill-gotten fruits of such offenses from her partner in crime Samuels supports the probation report's conclusion that Smith is a danger to society. Finally, we find nothing in the record that indicates that the trial court was not fully aware of the circumstances of Smith's previous crimes and her current offenses.
Overall, the court properly considered Smith's criminal history, the circumstances of her current offenses in the instant matter, her character, and the fact that Smith did not appear for trial or sentencing. Further, the court explained its reasoning in denying Smith's Romero motion:
"[T]hese two [Smith and Samuels] go way back. There was an incident back in 2008 where they claimed to be married so they have been partners in crime for some time now. [¶] And I think she's elected to have a life of crime. I mean this -- she doesn't seem to show any indication that -- she's someone who is a babe in the woods and that she shouldn't fall within the spirt of the Three Strikes Law, so she certainly qualifies. I'm not going to exercise my discretion and pull her out of that."
Certainly, there is nothing in the record that would allow us to deem the trial court's decision " 'arbitrary, capricious or patently absurd.' " (Carmony, supra, 33 Cal.4th at p. 378.) Against this backdrop, we cannot say that the trial court abused its discretion in denying Smith's Romero motion.
VII
THE COURT'S IMPOSITION OF THE UPPER TERM ON SMITH'S
CONVICTION FOR RECEIVING STOLEN PROPERTY
Smith additionally claims that the court abused its discretion in imposing the upper term for her conviction for receiving stolen property. We disagree.
The People argue that Smith forfeited this challenge by not objecting to the sentence when announced. (See People v. Scott (1994) 9 Cal.4th 331, 353.) However, Smith's counsel asked the court to impose the middle term, stating reasons the court should do so. In challenging the sentence imposed, Smith repeats the same arguments that were made to the trial court. Thus, we do not consider this issue forfeited and will address the merits of Smith's argument.
We review a sentencing decision for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) We do not disturb a trial court's exercise of discretion unless we find the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordon (1986) 42 Cal.3d 308, 316.)
"[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying an enhancement may not be used to impose the upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to impose the upper term].) The court's discretion to identifying aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' " (People v. Sandoval, supra, 41 Cal.4th at p. 848.)
Here, the trial court selected the upper term for Smith's sentence for receiving stolen property "because of the planning and sophistication of the crime." Smith argues that there is no evidence in the record supporting the court's finding. We disagree.
At trial, it was shown that Smith received stolen property from three separate burglaries. Most of the property was kept in a motel room in which Smith and Samuels were staying. And there was evidence that Smith and Samuels had a preexisting relationship and engaged in previous criminal activities. We determine this evidence is sufficient for the trial court to conclude that Smith's offense showed some level of planning and sophistication. One valid factor in aggravation is sufficient to support the imposition of an upper sentencing term. (People v. Black (2007) 41 Cal.4th 799, 813.)
Additionally, we are not impressed by Smith's emphasis on other mitigating factors, which are the same on which she challenges the court's denial of her Romero motion. We reject these arguments for the same reasons we discuss above. In addition, we observe a trial court may minimize or even entirely disregard mitigating factors, without stating its reasons. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) In essence, Smith is asking this court to substitute its judgment for that of the trial court. We cannot do so under the extremely deferential abuse of discretion standard of review. (See Carmony, supra, 33 Cal.4th at p. 377.)
VIII
SMITH'S SENTENCE FOR OBTAINING PERSONAL IDENTIFYING
INFORMATION WITH THE INTENT TO DEFRAUD
Smith next contends that the sentence on her conviction for obtaining personal identifying information with the intent to defraud (§ 530.5, subd. (c)(1)) must be stayed under section 654. We disagree.
Section 654 bars multiple punishments of a single, physical act or omission. Fifty-four years ago, however, in Neal v. State of California (1960) 55 Cal.2d 11 (Neal), our Supreme Court substantially enlarged the statute's scope. The court, recognizing that few crimes result from a single physical act, adopted a test focusing on whether the defendant engaged in an indivisible course of conduct pursuant to a single intent and objective. (Id. at p. 19.) In applying this test, the court inquired whether all of the crimes were incident to one objective (ibid.) and whether one crime served as the means of perpetrating another crime (id. at p. 20).
Section 654 provides in pertinent part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Over 30 years later, in People v. Latimer (1993) 5 Cal.4th 1203, our Supreme Court criticized the Neal test as a " 'judicial gloss' . . . 'engrafted onto section 654' " that can defeat the statute's purpose of matching punishment with culpability. (Latimer, supra, at p. 1211.) Nonetheless, the court in Latimer declined to overrule the Neal test because, over the course of three decades at that point, the Legislature had incorporated the Neal rule into California's sentencing scheme. (Latimer, supra, at p. 1205.) In Latimer, the court "stressed, however, that 'nothing we say in this opinion is intended to cast doubt on any of the later judicial limitations of the Neal rule.' " (People v. Correa (2012) 54 Cal.4th 331, 336 (Correa).) Recently, our Supreme Court placed another judicial limitation on the Neal rule (Correa, supra, at p. 344) after recognizing that the Neal test "has been a subject of continuing controversy and given rise to much confusion" (Correa, supra, at p. 335).
In Correa, the court rejected dictum in a Neal footnote and concluded "section 654 does not bar multiple punishment for violations of the same provision of law." (Correa, supra, 54 Cal.4th at p. 344.)
These judicial limitations—intended to better correlate punishment with culpability—have narrowed the application of Neal's single intent and objective test. (Correa, supra, 54 Cal.4th at p. 341.) Of these limitations, the following ones are relevant here. First, courts avoid viewing a defendant's intent or objective too broadly or amorphously. (People v. Perez (1979) 23 Cal.3d 545, 552; People v. Morelos (2008) 168 Cal.App.4th 758, 769.) Second, courts have recognized the need for flexibility in applying the rule on a case-by-case basis: "[T]here can be no universal construction which directs the proper application of section 654 in every instance." (People v. Beamon (1973) 8 Cal.3d 625, 636.) "Notwithstanding the apparent simplicity of its language, the applicability of section 654 in a particular case often involves a difficult analytical problem. [Citation.] Each case must be determined on the basis of its own facts, and general principles applicable to one type of case may not apply to another." (In re Adams (1975) 14 Cal.3d 629, 633.)
" 'The defendant's intent and objective are factual questions for the trial court' " (People v. Coleman (1989) 48 Cal.3d 112, 162), "which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) When a trial court sentences a defendant for two crimes, without suspending execution of sentence, the judge implicitly finds the acts involved more than one objective. (People v. Osband (1996) 13 Cal.4th 622, 730.) There must be evidence supporting the court's findings (express or implied). (Coleman, supra, at p. 162.) We review for substantial evidentiary support the court's implied findings that neither of defendant's crimes was incidental to the other or the means by which the other crime was accomplished, and that defendant harbored separate intents. (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.) We view the record in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the court could reasonably deduce from the evidence. (Ibid.)
Here, we are satisfied that substantial evidence supports the trial court's determination not to stay Smith's sentence for her violation of section 530.5, subdivision (c)(1). Smith was found in possession of several stolen items, including a laptop, an iPad, and jewelry. She also possessed Stedman's checks, credit card, and driver's license. These latter three items form the basis of Smith's offense under section 530.5, subdivision (c)(1).
Receiving stolen goods and obtaining personal information with the intent to defraud involve different intents and objectives. For the former, Smith's intent was to deprive the owners of possession of their property. (See People v. Wielograf (1980) 101 Cal.App.3d 488, 494.) As to the latter, Smith had the additional intent to defraud. (See § 530.5, subd. (c)(1).) In other words, Smith could use Stedman's checks, credit cards, and driver's license to make fraudulent purchases and obtain additional lines of credit. The evidence supports the trial court's conclusion that Smith had multiple criminal objectives in committing her various crimes. Section 654 therefore is not applicable.
Despite this evidence, Smith urges us to follow People v. Valenzuela (2012) 205 Cal.App.4th 800 (Valenzuela) to reach a different conclusion. In that case, the defendant was convicted of one count of receiving stolen property and three counts of identity theft. On appeal, the defendant successfully argued that his sentence on one of the counts of identity theft had to be stayed because it was based on his possession of a driver's license, which was the subject of the receiving stolen property count. (Id. at p. 802.) In the disposition of the opinion, the court indicated that the judgment was modified to stay one of the sentences on one of the three counts for identity theft. (Id. at p. 809.) Yet, there is no discussion of this issue in the published portion of the opinion. Thus, Valenzuela provides little guidance here.
Also, based on the published portion of Valenzuela, supra, 205 Cal.App.4th 800, it appears that Smith's situation here is factually distinguishable from the defendant in Valenzuela. Smith was charged and convicted of receiving stolen property from three different burglaries. The items included a laptop, iPad, and jewelry. Thus, her conviction for receiving stolen property was not based solely on the items (Stedman's checks, credit card, and driver's license) that formed the basis of her conviction under section 530.5, subdivision (c)(1). As such, Smith's offense of receiving stolen property is much different than that same offense for the defendant in Valenzuela.
Therefore, we find the trial court did not error in declining to stay Smith's sentence for violating section 530.5, subdivision (c)(1).
IX
THE RESTITUTION ORDER FOR THE VICTIMS' ECONOMIC LOSS
At sentencing, the trial court ordered that restitution be paid jointly and severally with Samuels "in an amount to be determined by the Court." The court did not impose an amount. There is no indication in the record that a restitution hearing has been held or is on calendar.
Smith argues that the court abused its discretion by ordering restitution because the victims incurred no economic loss from Smith's crimes. She emphasizes that the victims did not inform the probation department or the court of any monetary loss. She further maintains that all of the stolen property that could have been received by Smith was returned to the victims. Thus, Smith asserts no factual or rational basis existed for the court to impose a restitution fine. Smith's argument is not yet ripe.
Section 1202.4, subdivision (f) provides in part, "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." Subdivision (f) further provides: "[I ]f the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court."
Here, the court ordered Smith pay restitution "in an amount to be determined by the Court," because the amount of loss to the victims could not be ascertained at the time of the hearing. Although, as Smith points out, the probation report indicated that "it appears the victims' property was returned to them," the court did not make any such finding at the sentencing hearing.
Undoubtedly, Smith has the right to a hearing before the superior court to dispute the determination of the amount of restitution. (§ 1202.4, subd. (f)(1).) But no amount has been determined. If a restitution hearing is ever held and Smith is ordered to pay a specific amount of restitution, Smith can challenge the basis for such a determination. Until then, as Smith has not been ordered to pay a certain amount and no findings have been made as to the victims' losses, it would be premature for us to conclude whether the court abused its discretion in ordering a restitution award.
XI
THE PAROLE REVOCATION RESTITUTION FINE
Smith's last two challenges are aimed at the restitution fine the court levied under section 1202.4. First, she contends the court abused its discretion by imposing a $3,600 restitution fine because it followed an erroneous calculation in the probation report. Second, Smith maintains this restitution fine needs to be suspended, not stayed.
The People object that Smith's first challenge to the restitution fine has been forfeited. Smith counters that her counsel was ineffective for failing to object. We conclude both these two arguments are moot because we exercise our discretion to consider the merits of this sentencing issue. (See People v. Williams (1998) 17 Cal.4th 148, 161-162 & fn. 6; People v. Smith (2003) 31 Cal.4th 1207, 1215.)
Section 1202.4, subdivision (b)(1) provides: "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall not be less than one hundred fifty dollars ($150) and not more than one thousand dollars ($1,000)." Here, Smith was convicted of a felony. Therefore, under subdivision (b)(1), the court could set her restitution fine between $300 and $10,000. In doing so, the court must consider any relevant factors, including the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. (§ 1202.4, subd. (d).) However, the trial court has wide discretion in setting the amount of the restitution fine within the range authorized by statute and need not make express findings to support the amount of the fine. (People v. Urbano (2005) 128 Cal.App.4th 396, 405-406.)
Despite the ample discretion a trial court has to levy a restitution fine under section 1202.4, Smith insists the court abused its discretion because it improperly calculated the restitution fine under section 1202.4, subdivision (b)(2). That subdivision states: "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4., subd. (b)(2).) Under subdivision (b)(2), Smith asserts that the restitution fee could be no more than $1,800 calculated by multiplying the minimum fine of $300 by her six-year prison term and the number of felony count convictions (one).
Smith's argument, however, overlooks two salient points. One, section 1202.4, subdivision (b)(2) is not a mandatory provision. A court may use the subdivision's formula if it decides to do so, but there is no requirement that it must use it. Two, there is no indication in the record that the court used the formula in subdivision (b)(2). The probation officer's report suggested a restitution fine under section 1202.4 of $3,600, but there is not even a hint in the report that the probation officer used subdivision (b)(2) to calculate the restitution fine. Alternatively stated, there is nothing in the record that leads us to conclude that the court used subdivision (b)(2) to calculate Smith's restitution fine. As such, we cannot find that the court abused its discretion in levying a restitution fine under section 1202.4, subdivision (b)(2).
Smith has offered no other argument that the restitution fine was improper. The $3,600 fine was well within the statutory range of $300 to $10,000. (See § 1202.4, subd. (b)(1).) Smith's felony of receiving stolen property impacted multiple victims and involved property of substantial value. On this record, we are satisfied that the court did not abuse its discretion in levying the restitution fine of $3,600 under section 1202.4.
Smith's final challenge here is that the restitution fine should be suspended not stayed. As the People concede, Smith is correct. Section 1202.45, subdivision (c) provides in part that the parole revocation fine "shall be suspended unless the person's parole, postrelease community supervision, or mandatory supervision is revoked."
At the sentencing hearing, the court stated that the parole revocation restitution fine was "to be stayed and remain so unless defendant's supervision is revoked." However, the abstract of judgment indicates that the fine is "suspended unless parole is revoked."
Whether recitals in the clerk's transcript should prevail over contrary statements in the reporter's transcript depends upon the circumstances of each particular case. (People v. Smith (1983) 33 Cal.3d 596, 599.) " '[T]hat part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence.' " (Ibid., quoting In re Evans (1945) 70 Cal.App.2d 213, 216.)
It appears that the trial court misspoke when it said that the fine was to be stayed as opposed to suspended. The form language of the abstract of judgment mirrors that of section 1202.45, subdivision (c). As such, the abstract of judgment prevails over the reporter's transcript under the circumstances before us. Because the abstract of judgment need not be modified, we order no further action by the superior court.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
AARON, J.