NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1765675)
Defendant Samuel Ceaser Gonzales was convicted by a jury of one count of receiving stolen property (Pen. Code, § 496, subd. (a)) and placed on three years' probation. On appeal, he argues that insufficient evidence supports his conviction, the jury was improperly instructed, and the trial court's order imposing attorney fees for the services of his public defender should be vacated. We find no merit in any of his arguments and affirm the judgment.
Unspecified statutory references are to the Penal Code.
1. The Information
On November 21, 2017, an information was filed charging defendant with one count of second degree burglary (§§ 459, 460, subd. (b); count 1), two counts of receiving stolen property (§ 496, subd. (a); counts 2 & 3), and one count of petty theft (§§ 484, 488; count 4).
2. The Trial
a. Counts 1 and 2
Shortly after midnight on April 14, 2017, Snap-On Diagnostics (Snap-On), a company that specializes in hand-held diagnostic units used by professional mechanics, was burglarized. Security camera footage taken from the night of the burglary showed that a silver car pulled into the company's parking lot. One of the car's occupants, who was approximately five feet eight or nine inches tall, broke a window, went inside, and handed some of the boxes from inside of the company's warehouse to an accomplice who was waiting outside.
After the burglary, Snap-On reviewed its inventory and discovered that four diagnostic scanner units, each worth over $5,000, were missing. Using records, the company determined the serial numbers of the units that were taken. Snap-On also ascertained that some packing materials and a test unit, which did not have a serial number, were missing.
A community services officer was dispatched to Snap-On to investigate the burglary. According to the community services officer, he was unable to obtain fingerprints because other individuals had already touched the areas that the suspects had allegedly touched. The community services officer was also unable to obtain any DNA samples from the crime scene.
The same day as the burglary, April 14, Steven Gonzales, defendant's brother, pawned one of the stolen scanners for $600 at the Buy Sell Loan pawnshop. The next day, April 15, Steven pawned another stolen scanner for $1,000 at a different Buy Sell Loan pawnshop. Two days later, on April 17, defendant pawned a third stolen scanner for $1,000 at the same Buy Sell Loan pawnshop that Steven pawned the second stolen scanner. Defendant later redeemed this scanner from the pawnshop. On April 21, defendant pawned a scanner with the same serial number as the first scanner pawned by Steven to the Best Collateral pawnshop for $800. Defendant redeemed the scanner from the pawnshop on April 28.
We refer to defendant's brother as "Steven" for clarity. The scanners that were pawned had serial numbers that matched the serial numbers of the scanners taken from Snap-On.
b. Counts 3 and 4
On January 30, 2017, Mathew Richardson went to check on his storage unit. When he arrived, he noticed that the door to his storage unit was open. Richardson discovered that four guitars and some tires were missing.
Richardson searched the Internet and found that one of his stolen guitars was listed for sale on Craigslist. Richardson contacted the police and the store where the guitar was being sold to see if he could get his guitar back. Richardson went to the guitar store, and, while inside, he saw that two of his other stolen guitars were also being sold at the store. One of his stolen guitars was missing a special tie-dye frog guitar strap.
Later, police searched defendant's family home, where his brother Steven also resided, and recovered the tie-dye frog strap. A silver car was parked outside defendant's family's home, which an officer associated with Steven.
According to a guitar store employee, defendant came to the store on February 25, 2017, and sold the three stolen guitars to the store.
3. The Verdict and Sentencing
The jury convicted defendant of receiving stolen property (count 2) in connection with the burglary at Snap-On. The jury was unable to reach a verdict on the remaining counts, and the trial court dismissed count 1 and declared a mistrial over counts 3 and 4. On June 1, 2018, the trial court suspended imposition of sentence and placed defendant on three years' probation. The trial court also imposed various fines and fees, including $3,000 in attorney fees for the cost of defendant's public defender. Defense counsel did not object to the imposition of the fees, which were imposed as a separate order and not made a condition of probation.
The probation report mentioned the possibility of attorney fees. The probation report stated, "NOTE: Attorney fees if appropriate."
1. Sufficiency of the Evidence
Defendant argues insufficient evidence supports his conviction for receiving stolen property in connection with the Snap-On burglary. Defendant argues that mere possession of stolen property is insufficient to prove he is guilty of receiving stolen property, and there was no corroborating evidence that demonstrated that he knew that the scanners that he pawned were stolen.
a. Legal Principles and Standard of Review
"In reviewing a criminal conviction challenged as lacking evidentiary support, ' "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.] The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence . . . . An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396, citations omitted.)
Section 496, subdivision (a) provides in pertinent part: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished . . . ."
To be convicted of the crime of receiving stolen property, "the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant had possession of the stolen property." (People v. Land (1994) 30 Cal.App.4th 220, 223; People v. Kunkin (1973) 9 Cal.3d 245, 249.) Numerous cases have held that knowing possession of stolen property raises a strong inference of knowledge of the tainted nature of the property; thus, only slight corroborating evidence need be adduced to permit a finding of guilt. (People v. Anderson (1989) 210 Cal.App.3d 414, 420-421 (Anderson); People v. Reyes (1997) 52 Cal.App.4th 975, 985; People v. Barker (2001) 91 Cal.App.4th 1166, 1174.) However, mere possession of stolen property is insufficient to prove that defendant received stolen property. (Anderson, supra, at p. 426.)
b. Application to Defendant's Case
Defendant pawned two stolen scanners, the first transaction taking place just days after the Snap-On burglary. Accordingly, since there was evidence that defendant was in possession of recently stolen property, only slight additional corroborating evidence was necessary to establish defendant's knowledge that the scanners that he possessed were stolen. (See Anderson, supra, 210 Cal.App.3d at p. 422 ["we believe it to have been well within reason for a jury to have determined that possession within four and a half months, and certainly possession within approximately one month, of the theft should lead to an inference of knowledge of the stolen nature of the property"].)
On appeal, defendant focuses on the evidence that is favorable to his position. He argues that a reasonable interpretation of the evidence is that Steven committed the burglary at Snap-On with an unknown accomplice, who was not defendant. Defendant further argues that there is no evidence that Steven told him about the burglary or the fact that the scanners were stolen. As a result, defendant argues that the only fact that could possibly be used as corroboration is that Steven, the likely culprit, is defendant's brother.
We agree with defendant that the evidence that he knew that the scanners were stolen was not particularly overwhelming. Defendant, however, ignores facts that are detrimental to his position. Based on the record, we conclude that the circumstances surrounding defendant's possession of the stolen scanners supplies the slight corroboration required to support the jury's conclusion that defendant knew that he possessed stolen property.
Sufficient corroborative evidence can include the "suspicious circumstances attendant upon [a defendant's] possession of the item[s]." (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1020.) In this case, there were several suspicious circumstances present: Steven and defendant resided together in the same home, the silver car that was associated with Steven was consistent with the silver car seen on Snap-On's security footage, two individuals were recorded on the security footage committing the burglary at Snap-On, and Steven and defendant were the only two individuals who pawned scanners taken from Snap-On.
What defendant did with the scanners and the amount of money that he received in return for each unit was also suspicious. Defendant pawned the first scanner for $1,000 several days after the burglary. He received $800 for the second scanner that he pawned. The scanners were each worth more than $5,000. Thus, defendant pawned the scanners—the first only days after the initial burglary—for less than one-fifth of their original value, supporting the conclusion that he knew that the scanners were stolen. (See People v. Citrino (1956) 46 Cal.2d 284, 289 [sale of equipment worth $150 for $25 was corroborative evidence of burglary]; People v. Malouf (1955) 135 Cal.App.2d 697, 706 ["sale of property at a price which is disproportionately low in comparison with the value of the property may be a suspicious circumstance"]; People v. Lang (1904) 142 Cal. 482, 484-485 [pawning of coat on day it was lost points to guilt].)
As the reviewing court, we must draw all reasonable inferences in favor of the judgment below. (People v. Maury, supra, 30 Cal.4th at p. 396.) In so doing, we conclude that there was slight corroborative evidence in support of defendant's conviction. Thus, defendant's claim of insufficient evidence fails.
2. Instructional Errors
Defendant argues that the trial court committed instructional error. He argues that evidence supporting the guitar theft could be used only for a limited purpose for the Snap-On burglary (and vice versa) as described under Evidence Code section 1101, subdivision (b), and the trial court should have instructed the jury on the limited purpose of the evidence. He also argues that CALCRIM No. 376 erroneously creates a mandatory inference of guilt.
a. General Principles and Standard of Review
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) "In addition, ' " 'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 915.)
b. Limiting Instruction For Other Charged Crimes
Before trial, the prosecutor filed a motion in limine seeking to introduce evidence of three prior uncharged burglaries under Evidence Code section 1101, subdivision (b). Defense counsel filed a motion to sever counts related to the Snap-On burglary and the counts related to the guitar theft. Defense counsel also filed a separate motion seeking to exclude evidence of the prior uncharged burglaries.
The trial court denied the motion to sever, stating: "I believe, off the record, I told you that my decision was based on the fact that I'm going to permit [Evidence Code section] 1101[, subdivision] (b) evidence that each of the counts can be used for the other counts, the counts from the Snap-On Diagnostics can be used as 1101(b) for the counts involving the guitars, and vice versa. So in any event, the evidence would be admissible; so I'm going to allow that." Thereafter, the trial court excluded evidence of the three prior uncharged burglaries.
During trial, defense counsel argued that he believed that evidence of the other charged crimes in the case could not be used to establish knowledge. Defense counsel commented that the trial court had previously determined that the evidence would not be admissible to establish identity.
After the close of evidence, the prosecutor filed a motion requesting that there be no limiting instruction on the evidence of the other charged crimes. The prosecutor argued that a limiting instruction would confuse the jury about the burden of proof. The trial court stated that it "didn't think it was appropriate to limit" the evidence. The trial court then stated, "It was for propensity, which is what I was concerned about, and that was not argued; so anything else?" Defense counsel submitted the matter and did not argue that a limiting instruction should be given.
After deliberations began, the jury submitted the following question to the trial court: "Can we use any or all of the evidence to reach conclusions for any of the counts?"
The trial court and counsel convened to discuss the appropriate answer. During discussions, defense counsel made the following argument: "I ask that the Court instruct the jury with regard to the limitation on [Evidence Code section] 1101(b) that was ruled upon in limine. There were a number of categories by which the Court indicated in limine, over Defense objection, that the evidence was cross-admissible for. However, significantly, one category that it was not admissible for was identity. I know that we would not have give [sic] the jurors the 1101(b) instruction, and I did not object to that because I found the 1101(b) instruction incredibly confusing with regard to the preponderance of the evidence standard versus the reasonable doubt standard, but I did not believe that to mean that the Court was now allowing introduction of evidence for all purposes, cross-admissible between counts; so I would ask that the Court further instruct the jury that they are not to use evidence from Counts 1 and 2 and 3 and 4 against each other for identity."
In response, the prosecutor argued: "The [P]eople did file a motion regarding the Court not providing a limiting instruction. In the People's motion, we cite People versus Villatoro . . . , and that's [the] California Supreme Court case where evidence of other charged offenses in multiple crimes cases are allowed—the jury can consider the evidence for purposes of 1101(b) as well as to establish the other charged offenses. [¶] So for that reason, all the evidence that was presented in this case can be used—utilized by the jury and is cross-admissible across all counts."
The trial court responded to the parties' arguments by stating, "I've indicated that I believe that that was—we didn't, like, take it up as a specific motion, but I believe it was mentioned when we were going through the jury instructions that were given and so forth, and I think you made reference to the fact that that motion had been made and granted."
Subsequently, the trial court answered the jury's question as follows: "Unless evidence was offered for a limited purpose (see Inst. No. 303) the jury may consider any evidence for any count(s). However, you may not consider any evidence to prove defendant is of bad character or that he had a disposition to commit any of the crimes charged."
In his opening brief, defendant argues that defense counsel's request to the trial court that a limiting instruction pursuant to Evidence Code section 1101, subdivision (b) be given in response to the jury's question preserved his arguments on appeal. If we find that he forfeited his argument, defendant alternatively argues that defense counsel rendered ineffective assistance. The Attorney General does not argue forfeiture and addresses the merits of defendant's arguments. Given that defense counsel expressly argued that the trial court should give a limiting instruction, we find no forfeiture and proceed to address the merits of defendant's claims.
Defendant argues that the trial court should have given the jury a limiting instruction precluding it from using evidence of the other charged crimes as propensity evidence and specifying that the evidence could be used only for specific purposes such as to prove intent or knowledge.
Under Evidence Code section 1101, subdivision (a), character evidence is generally inadmissible to prove a person's conduct on a particular occasion. Evidence Code section 1101, subdivision (b) permits admission of evidence that a person committed a crime or some other act to prove a fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, other than a defendant's propensity. "In this inquiry, the degree of similarity of similar acts is often a key factor, and 'there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: "The least degree of similarity . . . is required in order to prove intent. . . ." . . . By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.' " (People v. Jackson (2016) 1 Cal.5th 269, 300.) The California Supreme Court has recognized that Evidence Code section 1101, subdivision (b) "applies not only to evidence of uncharged misconduct [citations], but also to evidence (already admitted) of charged offenses." (People v. Villatoro (2012) 54 Cal.4th 1152, 1161 (Villatoro).)
Defendant does not argue that the counts related to the Snap-On burglary and the guitar thefts were erroneously joined under section 954. Defendant, however, argues that the evidence was not cross-admissible.
Section 954 provides that an accusatory pleading may charge two or more different offenses of the same class of crimes or offenses under separate counts.
In his opening brief, defendant argues that "there was no evidence used to implicate [defendant] of the charges related to the Snap-On Diagnostics charges that would also have been cross-admissible on the guitar charges."
We disagree with defendant's conclusion about the cross-admissibility of the evidence. As stated, the least degree of similarity between prior acts is required to prove intent. (People v. Jackson, supra, 1 Cal.5th at p. 300.) To prove knowledge, other crimes evidence need only be similar in a general way if the prosecution's knowledge theory is based on an inference that defendant learned from his or her prior experiences. (People v. Hendrix (2013) 214 Cal.App.4th 216, 241-242.) To prove knowledge "when that element is akin to absence of mistake, the uncharged events must be sufficiently similar to the circumstances of the charged offense to support the inference that what defendant learned from the prior experience provided the relevant knowledge in the current offense." (Id. at pp. 242-243.)
In this case, there was a sufficient degree of similarity between the crimes for the evidence to be cross-admissible to prove intent or knowledge based on an inference that defendant learned from his prior experiences. In both cases, the burglary and theft took place when nobody was physically present, and the resulting theft resulted in the stolen items being pawned or sold for money.
During closing arguments, the prosecutor argued that defendant learned from the guitar theft, noting that defendant sold three stolen guitars in February of that year to the guitar store and nothing happened, enabling him to pawn the stolen scanners.
Additionally, the trial court responded to the jury's question by admonishing the jury that although it could use any evidence for any count unless the evidence was admitted for a limited purpose, it could not consider any evidence to prove defendant's bad character or disposition to commit the charged crimes. In other words, the trial court specifically instructed the jury that it could not consider evidence to prove specific conduct as prohibited by Evidence Code section 1101, subdivision (a).
Defendant insists that the trial court's answer to the jury was insufficient because the trial court did not inform the jury of the specific purposes that it was permitted to use the other crimes evidence, and the jury was not told to disregard the other crimes evidence if the prosecutor failed to prove the crimes beyond a reasonable doubt. Defendant argues that the trial court's comments to counsel during the proceedings confirmed that the evidence was not cross-admissible as to identity. (See People v. Jackson, supra, 1 Cal.5th at p. 300 [highest degree of similarity required to prove identity].) Thus, defendant insists that a limiting instruction like CALCRIM No. 375, the standard limiting instruction given when admitting character evidence, was required.
We agree with defendant that a trial court is required to give an instruction explaining to the jury the evidence's limited purpose when requested by defense counsel. (Evid. Code, § 355 ["When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly."].) However, assuming without deciding that instructional error occurred, any error was harmless because it is not reasonably probable that defendant would have obtained a more favorable result had a limiting instruction been given. (People v. Falsetta (1999) 21 Cal.4th 903, 925 [applying People v. Watson (1956) 46 Cal.2d 818 standard of prejudice to trial court's failure to give limiting instruction].)
In her concurrence in Villatoro, supra, 54 Cal.4th 1152, Justice Corrigan observed that the California Supreme Court has never held that a limiting instruction is required when a defendant is charged with multiple counts but one of the counts is not similar enough to the other charged offenses to be admissible under Evidence Code section 1101, subdivision (b). (Villatoro, supra, at p. 1181 (conc. & dis. opn. of Corrigan, J.).) Justice Corrigan also pointed out that "[e]vidence pertaining to the charged crimes is not admitted for a limited purpose, and no instruction is needed to tell the jury of its possible relevance. Evidence that the defendant committed the charged crimes is, by definition, relevant and admissible." (Id. at p. 1180 (conc & dis. opn. of Corrigan, J.).)
First, defendant's concern over the use of other charged crimes as propensity evidence is ameliorated by the trial court's answer to the jury question, which expressly precluded the jury from considering the other charged crimes as propensity evidence.
Likewise, defendant's concerns about the improper use of the other charged crimes as evidence without the prosecutor having first proved the crimes beyond a reasonable doubt materialize only if the jury expressly disregarded the trial court's instructions. The jury was instructed that "[y]ou must decide what the facts are," "the People [must] prove a defendant guilty beyond a reasonable doubt," and "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." Thus, before the jury could consider evidence that defendant received stolen property or committed petty theft in connection with the stolen guitars when examining the counts related to the Snap-On burglary (and vice versa), the jury would first need to decide beyond a reasonable doubt whether the underlying facts were true—that defendant was involved with the guitar theft and the Snap-On burglary in the first place.
Defendant argues that evidence of other charged crimes can only be used when considering a different crime if the prosecutor proves that the defendant committed the other charged crimes beyond a reasonable doubt. Courts have held that "[w]hen evidence of a person's conduct is admitted under [Evidence Code] section 1101[, subdivision] (b), the jury may consider the evidence if it is proven by a preponderance of the evidence." (People v. Jones (2018) 28 Cal.App.5th 316, 323; People v. Leon (2015) 61 Cal.4th 569, 597.) Courts, however, have also upheld jury instructions that require that charged offenses be proved beyond a reasonable doubt before they can be used to show propensity under Evidence Code section 1108, which permits admission of sexual offenses as propensity evidence. (Villatoro, supra, 54 Cal.4th at pp. 1167-1168; People v. Cruz (2016) 2 Cal.App.5th 1178, 1186.)
Defendant further argues that a limiting instruction was necessary because the trial court itself acknowledged that an inference of identity would be prohibited but failed to preclude the jury from considering the other charged crimes for that purpose. However, the potential prejudicial effect of the jury's alleged consideration of the evidence for identity is small. The prosecutor did not strenuously argue that the two crimes were sufficiently similar such that the jury could draw an inference of identity. During closing argument, the prosecutor briefly remarked, "[defendant] has the same MO in all of these cases: He's pawning the property, selling the property at much lower value than the property is worth." And to the extent evidence of the other charged offenses was relevant to prove identity, the evidence was only weakly probative. Little evidence was introduced about how the guitar theft was committed, and, as a result, the jury would have had only a minimal opportunity to compare the two crimes to ascertain the perpetrator's identity.
Lastly, defendant insists that he was prejudiced by the trial court's decision not to give a limiting instruction because the prosecutor erroneously characterized evidence supporting the other charged crimes as propensity evidence. During closing argument, when discussing the counts related to the guitar theft, the prosecutor argued that "you [the jury] could use Counts 1 and 2 [the Snap-On counts] as proof that [defendant] knew that the property was stolen in this case and vice versa." Later, the prosecutor reiterated, "you can use the other charged offenses to find guilt in this case too, or in . . . Count 2." During his rebuttal, the prosecutor also argued, "[defendant] knew that he pawned that stolen property [before] and nothing happened. So it's no surprise that he then goes to the pawn shops and has no problem giving his ID."
Defendant mischaracterizes the prosecutor's statements, which informed the jury that it could use evidence of other charged crimes to infer defendant's knowledge and intent. The prosecutor did not urge the jury to find defendant guilty of the Snap-On burglary or the guitar theft based on his predisposition to commit crimes. Moreover, the jury was already expressly admonished by the trial court no to consider the evidence as propensity evidence, and we presume the jury followed the trial court's instructions. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 821 [it is presumed that jurors follow the instructions provided by the trial court absence evidence to the contrary].)
Accordingly, after considering the jury instructions as a whole, we conclude that even if we assume that the trial court erred, any error was not prejudicial because it is not reasonably probable that defendant would have received a more favorable result with a limiting instruction.
c. CALCRIM No. 376
The jury was instructed with CALCRIM No. 376. As read to the jury, CALCRIM No. 376 stated: "If you conclude that the defendant knew he possessed property and you conclude [that] the property had, in fact, recently been stolen, you may not convict the defendant of burglary, receiving stolen property, or petty theft based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed a burglary, receiving stolen property, or petty theft. [¶] The supporting evidence need only be slight, and need not be enough, by itself, to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary, receiving stolen property, or petty theft. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Defendant acknowledges that defense counsel did not object to CALCRIM No. 376 in the trial court. He insists that since he argues that the instruction violates his constitutional rights, defense counsel's failure to object did not forfeit the issue on appeal. Generally, a defendant that agrees or fails to object to proposed jury instructions forfeits the right to challenge the instructions on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326.) However, "[e]ven if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Thus, "[w]here . . . a defendant asserts that an instruction is incorrect in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11, overruled on a different point as stated in People v. Hardy (2018) 5 Cal.5th 56, 104.) As a result, we agree with defendant that the issue is not forfeited. --------
Defendant argues that CALCRIM No. 376 misstates the law because it fails to adequately inform the jury that the existence of corroborating evidence provides only a permissible (not mandatory) inference of guilt that the jury may reject. Accordingly, he argues that his due process rights were violated when the trial court gave the jury this instruction.
Defendant's challenges to CALCRIM No. 376 are focused on this particular sentence: "[I]f you find that supporting evidence tends to prove [defendant's] guilt, then you may conclude that the evidence is sufficient to prove he committed a burglary, receiving stolen property, or petty theft." (Italics added.) Defendant acknowledges that CALCRIM No. 376 uses the word "may," which is generally regarded as permissive, but he insists that the instruction remains defective because it does not expressly inform the jury that the inference is permissive. For example, defendant argues that language that the jury " 'may, but are not required to, consider' " an inference would adequately convey to the jury the permissive nature of the inference.
We disagree with defendant's conclusion that the wording of CALCRIM No. 376 creates a mandatory, not a permissive, inference. As defendant himself acknowledges, the use of "may" in CALCRIM No. 376 signals to the jury that the inference is permissive. Here, the jury was specifically instructed that "[w]ords and phrases not specifically defined in [the jury] instructions are to be applied using their ordinary, everyday meanings." Defendant does not cite to authority for the proposition that the term "may" is typically interpreted as mandatory. In fact, the opposite is true. Ordinarily, "may" is interpreted as permissive, not mandatory. (See People v. Standish (2006) 38 Cal.4th 858, 869 [when engaging in statutory interpretation, ordinarily the term "shall" is interpreted as mandatory and the term "may" is interpreted as permissive].)
Defendant acknowledges that the California Supreme Court has previously determined that CALJIC No. 2.15, the predecessor to CALCRIM No. 376, does not create a mandatory inference and does not violate a defendant's due process rights. (People v. Yeoman (2003) 31 Cal.4th 93, 131; People v. Holt (1997) 15 Cal.4th 619, 676-677.) Defendant, however, distinguishes CALJIC No. 2.15, arguing that the language in that instruction informed the jury that if there was corroborating evidence it could infer a defendant's guilt.
Defendant's argument that CALJIC No. 2.15 and CALCRIM No. 376 convey different meanings is without merit. CALJIC No. 2.15 states in pertinent part, "If you find that a defendant was in . . . possession of recently [stolen] . . . property, the fact of that possession is not by itself sufficient to permit an inference that the defendant . . . is guilty of the crime of [robbery, burglary, theft, or receiving stolen property]. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt." The language of CALJIC No. 2.15 and CALCRIM No. 376 are largely synonymous, and the difference that defendant points out—that CALJIC No. 2.15 informs the jury that with corroborating evidence the jury can "infer" a defendant's guilt, whereas CALCRIM No. 376 informs the jury that with corroborating evidence it "may" find a defendant to be guilty—is superficial.
Numerous appellate courts have commented on the permissive nature of the inference described in CALCRIM No. 376. (See People v. Solórzano (2007) 153 Cal.App.4th 1026, 1035 [stating that "the inference that possession of stolen property creates is permissive, not mandatory"]; id. at p. 1036 [and "[t]he permissive inference that CALCRIM No. 376 authorizes if the jury finds slight supporting evidence is linguistically synonymous with . . . the permissive inference that CALJIC No. 2.15 authorizes"]; People v. O'Dell (2007) 153 Cal.App.4th 1569, 1576 ["CALCRIM No. 376 does not suggest that the jury may ignore a defendant's evidence . . . [i]t is for the jury to decide whether to make an inference of guilt based upon the totality of the evidence presented"]; People v. Anderson (2007) 152 Cal.App.4th 919, 948 ["CALCRIM No. 376 does not create a presumption of guilt from possession alone, explained or unexplained . . . [e]ven when there is corroborating evidence, the instruction says only that this may be considered in determining guilt"].) As defendant observes, these cases do not discuss the specific issue he raises on appeal, but the appellate courts' repeated and consistent interpretation of CALCRIM No. 376 as permissive underscores and affirms our interpretation of the instruction's language.
Accordingly, we conclude that the trial court did not err when it instructed the jury with CALCRIM No. 376. We do not believe there is a reasonable likelihood that the jury interpreted the instruction in the manner that defendant suggests. (People v. Andrade, supra, 85 Cal.App.4th at p. 585.)
3. Attorney Fees Order
At sentencing, the trial court ordered defendant to pay $3,000 in attorney fees for the costs of his public defender. Defendant argues that the order should be vacated because the trial court did not comply with the statutory requirements of section 987.8, and, as a result, there is no evidence that he has the ability to pay attorney fees.
Although the trial court did not specify during the sentencing hearing under which statute it was imposing attorney fees, both parties presume that the fees were imposed under section 987.8. Under section 987.8, a trial court may order the payment of attorney fees pursuant to section 987.8, subdivision (b) only if it determines after a hearing that the defendant has the ability to pay. (§ 987.8, subds. (b), (g)(2).)
" 'Ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her." (§ 987.8, subd. (g)(2).) The trial court shall consider, but not be limited to, the following: "(A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. . . . [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (Ibid.)
Defendant acknowledges that defense counsel did not object during the sentencing hearing when the attorney fees were imposed. Defendant, however, argues that no objection was required under People v. Viray (2005) 134 Cal.App.4th 1186 (Viray). As we explain, we disagree and conclude that defense counsel's failure to object to the trial court's failure to follow the statutory requirements of section 987.8 forfeits his arguments on appeal.
In Viray, a different panel from this court concluded that "[w]e do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees." (Viray, supra, 134 Cal.App.4th at p. 1215.) There, defense counsel requested that the court assess attorney fees on the defendant and referred the court to a written request seeking $9,200 in fees. (Id. at pp. 1193-1194.) After reviewing the request, the trial court ordered the defendant to reimburse the county for the public defender's fees in the amount of $9,200. (Id. at p. 1194.) The defendant appealed and argued that the trial court erred by ordering her to pay attorney fees because the record did not disclose that she received adequate notice of the hearing at which the court imposed the attorney fees order, the hearing was inadequate, and insufficient evidence was adduced to support the determination that the defendant had an ability to pay. (Id. at pp. 1213-1214.)
On appeal, this court declined to find the defendant's arguments forfeited by defense counsel's failure to object below. (Viray, supra, 134 Cal.App.4th at p. 1215.) We observed that "when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client's representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment." (Id. at pp. 1215-1216.)
We further observed that the conflict of interest existed even though defendant's attorney was a deputy public defender. (Viray, supra, 134 Cal.App.4th at p. 1216.) We noted "that a particular deputy public defender might, as a salaried employee, feel personally disinterested in a reimbursement order, and might even be willing to oppose it on behalf of the defendant. . . . However, the spectacle of an attorney representing a client in connection with an order requiring that client to pay for the attorney's services, however attenuated the connection be in fact, carries the patent appearance of at least a vicarious adversity of interests." (Ibid.) In Viray, the conflict of interest was especially apparent given that defense counsel himself requested attorney fees. (Ibid.) We also concluded that the defendant's claims going toward the sufficiency of the evidence to support the attorney fees order required no predicate objection in the trial court. (Id. at p. 1217.)
After this court's decision in Viray, the California Supreme Court held in People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar) that a defendant's failure to object to the imposition of various fines and fees to the trial court, including attorney fees imposed under section 987.8, forfeited the issue on review. On appeal, the Aguilar defendant argued that the trial court erroneously imposed fees without making certain determinations, including a determination of his ability to pay. (Id. at p. 865.) Aguilar adopted the reasoning of People v. Trujillo (2015) 60 Cal.4th 850, which concluded that a defendant forfeits an appellate challenge to the sufficiency of the evidence supporting a booking fee imposed under Government Code section 29550.2, subdivision (a) if an objection is not made below to the trial court. (Aguilar, supra, at p. 866; People v. Trujillo, supra, at pp. 856-858.) In other words, Aguilar makes clear that a failure to object below to the imposition of attorney fees under section 987.8 forfeits an appellate challenge to the fees, including a claim that insufficient evidence supports the attorney fees order.
Defendant acknowledges Aguilar but argues that Aguilar expressly declined to decide whether forfeiture occurs when there is a conflict of interest. Citing Viray, Aguilar noted that the case did not "present, and [it] therefore [did] not address, the question whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part." (Aguilar, supra, 60 Cal.4th at p. 868, fn. 4, citing Viray, supra, 134 Cal.App.4th at pp. 1216-1217.) Viray, however, is factually distinguishable. In Viray, the defendant's public defender specifically requested that the trial court order the defendant to pay attorney fees. (Viray, supra, at pp. 1193, 1216.) This action created a clear conflict of interest with his own client. (Id. at p. 1216.) Unlike in Viray, defense counsel here did not take a position on attorney fees and did not request that the trial court order the payment of attorney fees.
Moreover, if a conflict of interest can be asserted in every case where attorney fees are ordered under section 987.8, Aguilar's forfeiture rule would be the exception, not the rule. The Aguilar court could have distinguished attorney fees under section 987.8 and exempted them from the requirement that they be preserved by an objection below, but it declined to do so. As a result, we are bound by Aguilar and conclude that defense counsel's failure to object to the attorney fees forfeited defendant's arguments on appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________