Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. 1086045. Nancy E. Ashley, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
A jury found Eddie Henry Zarate guilty of attempted theft from an elder adult. (Pen. Code, §§ 664, 368, subd. (d), 484.) On a stipulation to a bifurcation and jury trial waiver of the alleged prior, the court found a serious felony prior allegation true. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) At the probation and sentencing hearing, the court imposed, inter alia, a three-year, double-the-midterm sentence (§§ 18, 368, subd. (d), 667, subd. (e)(1), 1170.12, subd. (c)(1)) and a $900 probation report fee (§ 1203.1b).
Statutory references are to the Penal Code except where otherwise noted.
FACTUAL SUMMARY
An 82-year-old woman living alone in a mobilehome park heard a knock at her door one afternoon. Ricardo Garcia called her outside, showed her the water heater and the sewer pipe at her home, and told her both were leaking. He called his partner, Eddie Henry Zarate, from the end of the mobilehome park. The woman saw nothing leaking, had had no problems with her water heater or her sewer pipe, had asked no one to check either one, and had never seen Garcia or Zarate before.
Zarate told the woman that he had to write a list but could not do that outside; he invited himself inside. The woman did not feel comfortable but did not have a door she could latch. Garcia and Zarate both went inside. “What can you do with two men at your door?” she mused. Zarate quoted her $6,000 for a new water heater. She said she could not afford $6,000. Zarate lowered the price to $2,500, and she signed a check in that amount because she was “scared.” She had her hand on the door “ready to fly out if anything else occurred.”
After the woman signed the check, Zarate broke her water heater to pieces, loaded the pieces on his pickup truck, and went with Garcia to the bank, which declined to cash the check for lack of proper identification.
A police officer responded to a suspicious person call and spoke with a neighbor of the mobilehome park who believed men were offering repairs that weren’t needed. Seeing various tools and ladders in a driveway, the officer contacted the woman inside and spoke with her. He thought Garcia and Zarate were likely to return, so he moved his patrol car out of sight and stayed with her inside the home. On their return to her home, Garcia and Zarate were arrested.
ISSUES ON APPEAL
Zarate challenges the judgment on three grounds: (1) On the premise that the court erred by allowing the prosecutor to adduce evidence of Zarate’s exaggerated prices and to argue the relevance of those prices to attempted theft from an elder adult by false pretenses, Zarate contends that those rulings created an incorrect legal theory that requires reversal because nothing in the record shows whether the jury relied on that theory or on a correct legal theory. (2) Assuming arguendo that the judgment was based on “his false representations about the condition of the water heater or his false representations about the cost of replacing the water heater,” Zarate argues that a unanimity instruction was necessary and that if his attorney’s not requesting one forfeited his right to appellate review, then he received ineffective assistance of counsel. (3) Zarate argues that, by not objecting to the court’s imposition of a $900 probation report fee without a determination of his ability to pay, his attorney rendered ineffective assistance of counsel.
DISCUSSION
1. Theory of Prosecution
On the premise that the court erred by allowing the prosecutor to adduce evidence of Zarate’s exaggerated prices and to argue the relevance of those prices to attempted theft from an elder adult by false pretenses, Zarate contends that those rulings created an incorrect legal theory that requires reversal because nothing in the record shows whether the jury relied on that theory or on a correct legal theory. The Attorney General disputes the validity of the premise of Zarate’s argument.
The issue here arose from a motion in limine in which Zarate sought to exclude, generally, evidence of “false representations as to the value of the work to be performed” and, specifically, evidence that his price “was considerably higher than the market rate as determined by competitor’s [sic] prices.” In reliance on People v. Morphy (1893) 100 Cal. 84 (Morphy), he argued in his motion that the prices he charged “were equivalent to ‘puffing’ or an exaggeration of the value of his work, actionable only on television’s ‘Moral Court.’ Sadly, in a free market capitalist society, such as the one we enjoy in America, salespeople may charge whatever a little old lady is willing to pay. Caveat Emptor.” (Fn. omitted.)
In opposition, the prosecutor argued that Morphy was inapposite since Zarate’s conduct constituted not “just puffery” but an actual “misrepresentation as to the need for the water heater [to] be replaced in addition to the cost of its replacement” that went “well beyond just trying to make a profit” so as to “cross the line into theft by false pretenses.” Agreeing with the prosecutor, the court denied Zarate’s motion, characterizing the issue as “a matter for argument at best.”
At trial, the contractor who installed a new water heater for the woman after Zarate’s arrest testified as an expert witness that Zarate’s price of $385 for the water heater showed “a little markup,” that his price of $250 for installation was “reasonable,” that his price of $120 for two copper hoses was “pretty high” since together they cost about $10, that his price of $400 for two galvanized pipes was “pretty excessive” since together they cost about $75 and neither had to be replaced, that his price of $370 for ball valves was excessive since each costs about $5, that his price for a water heater blanket was “probably okay,” that his price of $450 for flooring was excessive since the cost was about $95 and no flooring had to be replaced, that his price of $29 for the gas valve was “fair,” that he would not question Zarate’s price for the water heater straps, that his price of $270 for the release valve was excessive since that comes with the water heater, and that his prices of $450, $275, and $1,500 for “the final three items,” respectively, “have nothing to do with the water heater.”
Additionally, the expert testified that Zarate’s price of $2,500 was “excessive” since a price of $750 allowed “a real good profit.” He had never heard of anyone getting more than $1,000, characterized that price as “pretty high for such a simple changeout,” and answered in the affirmative the prosecutor’s question whether “anything even beyond a thousand dollars is more than just your typical even excessive profit margin.” Over Zarate’s objection, the prosecutor argued to the jury that his price of $2,500 went “beyond the bound of common business practice” and asked the jury, “[W]here does capitalism turn into fraud?”
Characterizing as error the court’s rulings admitting the expert’s testimony and permitting the prosecutor’s argument, Zarate argues that, “[u]nder the long-standing Morphy rule, [he] would not have been guilty of the charged offense, theft by false pretenses, if [the woman]’s water heater had actually needed replacement and she had agreed to pay $2,500 for the replacement” and that, therefore, “any evidence that $2,500 was an excessive price was irrelevant and should have been excluded.” We disagree.
Morphy states the general rule that statements of opinion “are ordinarily no basis for criminal liability.” (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 49, p. 79.) In Morphy, the defendant misrepresented that he could sell goods cheaper in Hickman than those goods could be bought in Stockton, Oakdale, or Modesto but then sold for $184.50 in Hickman goods that could have been bought for $50 less in Stockton, Oakdale, or Modesto. (Morphy, supra, 100 Cal. at pp. 85-86.) If that misrepresentation is a crime, Morphy reasoned, then “a crime is paraded in numerous show-windows in every city.” (Id. at pp. 86-87.) The court reversed the judgment. (Id. at p. 87.)
As the court carefully observed, however, the record in Morphy was silent on the issue of whether the goods were “sold at a fair price.” (Morphy, supra, 100 Cal. at p. 86, italics added.) Quite to the contrary, the record here shows that Zarate attempted to sell the goods at a grossly inflated price of $2,500—more than three times higher than a “fair price” of $750 and fully two-and-one-half times higher than a “pretty high” price of $1,000 “for such a simple changeout” (above which the expert had never heard of anyone getting more). The question Morphy answered in the negative was whether “representations calculated to make intending purchasers believe that a particular merchant can and will sell goods cheaper than others” constitute theft by false pretenses. (Ibid., italics added.) Zarate made no representations calculated to make the woman believe that he could or would sell goods cheaper than others. The representation he made was calculated to make her believe that she had to buy another water heater because the one she had was leaking. On that issue, evidence of exaggerated prices in his quote was admissible to show motive and intent.
Morphy is the cornerstone of Zarate’s premise that the court erred by allowing the prosecutor to adduce evidence of his exaggerated prices and to argue the relevance of those prices to attempted theft from an elder adult by false pretenses. Morphy is utterly inapposite. The court did not err. So we reject, for want of a valid premise, his argument that those rulings created an incorrect legal theory that requires reversal.
2. Lack of Unanimity Instruction
Assuming arguendo that the judgment was based on “his false representations about the condition of the water heater or his false representations about the cost of replacing the water heater,” Zarate argues that a unanimity instruction was necessary and that if his attorney’s not requesting one forfeited his right to appellate review, then he received ineffective assistance of counsel. The Attorney General argues that only one legal theory was before the jury, that no unanimity instruction was necessary, and that Zarate’s attorney did not render ineffective assistance of counsel.
Before turning to the law, we turn to the record. The court instructed the jury as follows on the crime of attempted theft from an elder adult by false pretenses:
“[The d]efendant [is] charged with attempted theft of property from an elder adult.
“To prove the defendant is guilty of this crime, the People must prove that:
“One, the defendant attempted to commit theft or fraud;
“Number two, the property attempted to be taken was owned by an elder adult;
“Number three, the property, goods, or services obtained was worth more than $400; and
“Number four, the defendant knew or reasonably should have known that the owner of the property was an elder adult.
“To decide whether the defendant committed attempted theft or fraud, please refer to the separate instructions that I’ll give you on that crime.
“An elder is somebody who is at least 65 years old.
“Property includes money, labor, or real or personal property.” (See CALCRIM No. 1807.)
“The defendant is charged with attempted grand theft by false pretense.
“To prove that the defendant is guilty of this crime, the People must prove that:
“Number one, the defendant knowingly and intentionally deceived a property owner by false or fraudulent representation or pretense;
“Number two, the defendant did so intending to persuade the owner to let the defendant take possession and ownership of the property;
“Number three, the owner let the defendant have possession and ownership of the property because the owner relied on the representation or pretense; and
“Number four, when the defendant got the property, he intended to deprive the owner of it permanently.
“You may not find the defendant guilty of this crime unless the [P]eople have proved that there was a note or memorandum of the pretense signed or handwritten by the defendant or testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense.
“Property includes money, labor, and real or personal property.
“A false pretense is any act, word, symbol, or token the purpose of which is to deceive.
“Someone makes a false pretense if, intending to deceive, he or she does one or more of the following:
“One, gives information he or she knows is false; or
“Two, makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth.
“Proof that the representation or pretense was false is not enough by itself to prove that the defendant intended to deceive.
“An owner relies on false pretenses, if the falsehood is an important part of the reason the owner decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor the owner considers in making the decision. If the owner gives up property some time after the pretense is made, the owner must do so because he or she relies on the pretense.” (See CALCRIM No. 1804.)
Those instructions set forth the sole legal theory that Zarate committed attempted theft from an elder adult by false pretenses. His assumption arguendo that the judgment was based on “his false representations about the condition of the water heater or his false representations about the cost of replacing the water heater” is simply incorrect. (See ante, pt. 1.) On the sole legal theory in the case, on which his exaggerated prices were relevant to the issues of his motive and intent to commit the crime, he was entitled to, and the jury reached, a verdict in which all 12 jurors concurred beyond a reasonable doubt. (See People v. Jones (1990) 51 Cal.3d 294, 305.) No unanimity instruction was necessary. As the law neither does nor requires idle acts, so an attorney has no duty to make a futile request. (Civ. Code, § 3532; see People v. Anderson (2001) 25 Cal.4th 543, 587.) Because his attorney had no duty to request a unanimity instruction, we reject out of hand his argument that his attorney rendered ineffective assistance of counsel by not requesting one.
3. Probation Report Fee
Zarate argues that, by not objecting to the court’s imposition of a $900 probation report fee without a determination of his ability to pay, his attorney rendered ineffective assistance of counsel. The Attorney General argues that Zarate forfeited his right to appellate review and that no showing of ineffective assistance of counsel is in the record.
The record shows that the probation officer recommended that Zarate “pay the probation report fee, pursuant to Section 1203.1b PC, in the amount of $900.00,” and that at the probation and sentencing hearing the court imposed “a $900 probation report fee. That’s pursuant to [section] 1203.1(b).” In pertinent part, section 1203.1b provides that if the probation officer determines that a defendant has the ability to pay some or all of the reasonable cost of preparing a presentence probation report and determines the amount and manner of such payment, “[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (§ 1203.1b, subd. (a).)
The rule is settled that the right to appellate review of a nonjurisdictional sentencing issue not raised in the trial court is forfeited. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) The court could have imposed a lawful probation report fee if Zarate had expressly waived his right to a hearing or if the court had held a hearing, so the settled rule applies to the issue of a section 1203.1b probation report fee since error, if any, in the imposition of that fee was procedural, not jurisdictional. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072 (Valtakis).)
Zarate seeks refuge from Valtakis in People v. O’Connell (2003) 107 Cal.App.4th 1062 (O’Connell). The appellate court in O’Connell ordered a remand for a section 1203.1b hearing after the trial court imposed a fee for the cost of probation supervision without inquiring into the defendant’s ability to pay. (O’Connell, at pp. 1067-1068.) Forfeiture was not an issue before the court in O’Connell, however. Quite to the contrary, the Attorney General expressly agreed to a remand. (Id. at p. 1068.) A case is authority only for a proposition actually considered and decided. (In re Chavez (2003) 30 Cal.4th 643, 656.) O’Connell is inapposite. Zarate forfeited his right to appellate review. (Valtakis, supra, 105 Cal.App.4th at pp. 1069-1072.)
We turn, then, to the issue of ineffective assistance of counsel. By guaranteeing “access to counsel’s skill and knowledge” and an “‘ample opportunity to meet the case of the prosecution,’” the right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686; see People v. Ledesma (1987) 43 Cal.3d 171, 215.) Representation at sentencing is within the scope of those rights. (In re Perez (1966) 65 Cal.2d 224, 229-230; People v. Cropper (1979) 89 Cal.App.3d 716, 719.) A meritorious claim of ineffective assistance of counsel requires a showing of performance “below an objective standard of reasonableness” and of ensuing prejudice to the defense. (People v. Hart (1999) 20 Cal.4th 546, 623.)
The record shows no express knowing and intelligent waiver by Zarate of his right to a hearing, no request by his attorney for a hearing, and no hearing. The record does not show if his probation officer advised him of his right to a hearing or if he in some way gave an implied knowing and intelligent waiver of his right to a hearing. On that record, he fails to show both that his attorney performed deficiently and that the absence of an objection to the imposition of a probation report fee without a hearing prejudiced him. Nonetheless, he argues that there “is no conceivable tactical reason why trial counsel would not object to imposition of a $900 probation report fee without a finding of [his] ability to pay.”
“That we can hypothesize a reasonable tactical basis for defense counsel’s conduct does not, of course, prove that counsel did have a reasonable tactical basis for his action or inaction. But to support a claim of ineffective assistance of counsel, defendant must prove that counsel had no such tactical purpose. [Citation.] The record on appeal does not furnish such proof.” (People v. Jones (2003) 30 Cal.4th 1084, 1122.)
Failure to object rarely establishes ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th 394, 421.) That is so here. Zarate’s “remedy, if he can produce the requisite evidence, is through a petition for habeas corpus.” (People v. Jones, supra, at p. 1130.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., KANE, J.