IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SHAD SMITH, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F01451)
The opinion of the court was delivered by: Butz ,j.
P. v. Smith CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Shad Smith of grand theft. (Pen. Code, § 487, subd. (a).)*fn1 Granted probation, defendant appeals. He contends (1) the trial court erroneously excluded evidence of an accomplice's prior felony convictions, (2) in so ruling, the trial court violated his constitutional right to confront witnesses against him, (3) insufficient evidence supports the trial court's restitution order, and (4) the probation order requires correction to reflect the oral pronouncement of judgment. We will order the probation order corrected in certain respects. We shall affirm the judgment.
Anthony Sestito owned 12.5 acres of property located on Jackson Road in Sacramento. Sestito used the property for business and for storage of equipment including a damaged pumper truck, which had a 2,000-gallon aluminum tank mounted on it. Sestito rented some of his property to Ken Whitmire for Whitmire's business. Retiree Harry Smith (Harry),*fn2 apparently no relation to defendant, lived in a trailer on the back of the property and acted as an unofficial security guard or caretaker.
About 4:00 a.m. on Saturday, January 15, 2008, Harry woke up to a very loud scraping noise coming from a warehouse. Harry saw one of Whitmire's employees, Troy Corder, using a forklift to push pieces of aluminum from the warehouse to a U-Haul trailer. Harry saw another man pick up the pieces of aluminum and put them on the trailer. Harry had seen the second man working on the property on prior occasions. Harry saw a third man, who left the property when he saw Harry. Because Corder was involved in the work, Harry assumed that nothing was amiss.
On the following Monday, Harry noticed that a large aluminum tank was missing from the pumper truck. Harry explained what he had seen on Saturday to Sestito. Sestito suspected that the tank had been stolen, cut up, and sold to a recycling business. Sestito went to Sunshine Steel and found a pile of aluminum pieces that belonged to his tank. Sestito had to pay $24,000 to purchase a like-new replacement tank and an additional $2,000 to have it shipped from Kansas City.
Sacramento Sheriff's Detective Jason Manning obtained the weight master's certificate for the aluminum scrap transaction from Sunshine Steel. The certificate listed defendant's name as the seller, with his address, driver's license, vehicle license, and vehicle description. Detective Manning interviewed Corder who admitted that he and defendant had stolen the tank, cut it up, and sold the pieces. Corder refused to identify the third man involved. Manning interviewed defendant who said that his involvement in the theft was known and talking about it would be of no benefit to him. Defendant stated that using his own identification had been "stupid."
At trial, Corder testified under a grant of immunity. Corder entered a plea of guilty to grand theft of the tank. He had not yet been sentenced. He admitted that he had previously been convicted in 1998 of felony vehicle theft and felony evading. Corder had worked for Whitmire whose business included concrete work and recycling. The day before the theft, Corder, defendant, and the third man, who Corder continued to refuse to identify, discussed stealing the tank, which they all knew belonged to Sestito, cutting it up, and turning it in as scrap metal for recycling. About 9:00 p.m. on Friday, January 14, 2008, they returned to the property and used a forklift to take the tank to the shop where they cut it up. They then transported the pieces to Sunshine Steel. Because Corder worked on the property, they decided to use defendant's identification at Sunshine Steel. They were paid $900, which the three men split evenly. Corder felt bad and confessed. Although he did not want to identify anyone else, the detective already had defendant's identification from Sunshine Steel. Corder felt that defendant was trying to place the entire blame on Corder.
Defendant did not testify and called no witnesses.
I. Evidence of Accomplice's Prior Convictions
Defendant first contends that the trial court erroneously excluded evidence of Corder's other prior felony convictions. We find no error.
Prior to the presentation of evidence, the court and parties discussed Corder's prior convictions. In response to the court's inquiry, the prosecutor listed Corder's prior felony convictions as follows: a 1985 burglary, a 1993 failure to appear, a 1993 receiving stolen property, a 1997 possession of marijuana for sale, a 1998 vehicle theft, and a 1998 evading an officer. In response to the court's further inquiry, the prosecutor explained that Corder served 32 months in state prison for the two offenses in 1998, was released in 2001 or 2002, and had no other offenses since that time and the date of the current offense in January 2008.
The court asked defense counsel which prior felony conviction she proposed to use to impeach Corder. Defense counsel identified the two most recent felony convictions, the 1998 vehicle theft and the 1998 evading. When asked by the court, the prosecutor agreed that the evading offense was a moral turpitude crime. The court then ruled that defense counsel could use the two identified convictions. Defense counsel then added that she wanted to use the 1997 possession of marijuana for sale offense for which Corder had been sentenced to prison. The court stated that the two convictions which had already been identified were "enough," commenting that it had discretion ("I have given you two and that's all I'm going to give you"). Defense counsel claimed that the other priors "go strictly to the heart of this case and credibility issues. If [Corder] has a prior past for burglary and theft I think that is critical in the defense being allowed to impeach his credibility and bring out those facts so the jury has a more complete picture of [Corder]." Defense counsel added that Corder had not remained crime free and had been to prison at least four times. The prosecution responded that Corder's last crime of moral turpitude was in 1998 and that the other priors were "remote in time." The trial judge ruled: "I often get requests to exercise my discretion by defense lawyers to limit. Of course what we have now is a defense lawyer wants an unlimited. [¶] The Court is exercising its discretion. You may use the ones I told you."
On direct examination, Corder admitted that he had previously been convicted in 1998 of felony vehicle theft and felony evading. Corder testified under a grant of immunity, having entered a guilty plea to grand theft. The trial court instructed the jury that it should weigh Corder's testimony with caution since he was an accomplice as a matter of law and had prior felony convictions.
"Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352." (People v. Harris (2005) 37 Cal.4th 310, 337.)
"When the witness subject to impeachment is not the defendant, those factors [that show the probative value of the prior conviction] prominently include whether the conviction (1) reflects on honesty and (2) is near in time." (People v. Clair (1992) 2 Cal.4th 629, 654.) Against these factors, the trial court weighs "undue consumption of time," and the "substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
A defendant's fundamental right to attack the credibility of a witness against him should not be limited by the consumption of time where the evidence is of significant probative value and is not cumulative. (People v. Taylor (1980) 112 Cal.App.3d 348, 365.) "Evidence is cumulative if it is repetitive of evidence already before the jury." (People v. Evers (1992) 10 Cal.App.4th 588, 599, fn. 4.)
An exercise of discretion will be disturbed on appeal only if the trial court exercised it "'in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Contrary to defendant's assertion, the court is not obligated to perform its Evidence Code section 352 balancing on the record. (People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Here, the trial court noted that it had discretion, listened to argument and excluded some of Corder's convictions, noting that defense counsel already had two convictions of moral turpitude to impeach Corder. The trial court impliedly determined that additional convictions for impeachment would be cumulative. Contrary to defendant's claim, impeachment of Corder with two prior convictions of moral turpitude did not give him a false aura of veracity or lead the jury to believe that he had been otherwise free from crime. He pleaded guilty to the current grand theft. We conclude that the trial court did not abuse its discretion in excluding the other prior convictions as repetitive of evidence to be presented to the jury.
II. Constitutional Right to Confront Witnesses
Defendant contends that in excluding Corder's other prior felony convictions, the trial court violated defendant's constitutional right to confront witnesses against him. We reject this claim.
As defendant's appellate counsel acknowledged at oral argument, this contention invokes the same facts presented to the trial court in defendant's first argument. Defendant asserts the trial court's act of excluding Corder's other prior convictions had the additional legal consequence of violating the Sixth Amendment. Having rejected on the merits defendant's claim that the court erred in excluding Corder's other prior felony convictions, we need not separately discuss this "constitutional 'gloss.'" (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
III. Sufficiency of the Evidence for Restitution Order
Defendant contends insufficient evidence supports the trial court's restitution order. We reject this claim.
The probation report reflects that the probation officer interviewed Sestito by telephone. Sestito reported that the stolen tank was appraised at $12,000 to $13,000. Sestito reported that "he paid $22,400.00 to replace the tank, $2,600.00 to ship it from Kansas and $300.00 to hire someone to remove what was left of the original tank." The probation officer recommended that defendant pay $25,300, jointly and severally with Corder, in victim restitution.
At sentencing, defense counsel confirmed that she had received a copy of the probation report. In granting probation, the court ordered defendant to pay $25,300, jointly and severally with Corder, in victim restitution. Neither defendant nor defense counsel objected, commented, requested a hearing on the amount, or presented contrary evidence.
Arguing that there was no substantial evidence that "Sestito replaced the tank with like property," defendant claims the trial court lacked sufficient evidence to impose victim restitution in the amount of $25,300. The People assert that defendant has forfeited the issue by failing to raise the issue below. We agree.
Where the issue "concerns the identity and specificity of the losses involved[,] . . . it is a purely factual issue [that] is susceptible of waiver." (People v. Zito (1992) 8 Cal.App.4th 736, 742; see People v. Foster (1993) 14 Cal.App.4th 939, 944; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160.) "[S]entences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner," are forfeited on appeal if not first raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.)
In challenging the sufficiency of the evidence to support the restitution order, defendant misplaces his reliance upon a few cases in which a contested restitution hearing was held. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1163; People v. Thygesen (1999) 69 Cal.App.4th 988, 990-991; People v. Yanez (1995) 38 Cal.App.4th 1622, 1625.) Here, there was no hearing. The probation report alerted defendant and defense counsel to the discrepancy between the appraised value of the old tank and the purchase price of the new tank. Having failed to challenge the amount below in any manner whatsoever, defendant has forfeited the issue.
IV. Corrections to the Probation Order
Defendant contends that the probation order requires correction to reflect the oral pronouncement of judgment in three respects. The People concede all points. We agree in part.
The trial court imposed a $200 restitution fine and the probation order erroneously reflects a $400 restitution fine. The trial court imposed a main jail booking fee of $222.29 and the probation order erroneously reflects such fee in the amount of $242.29. We will direct the trial court to correct the order. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
We reject defendant's claim and the People's concession concerning the court facility fee. Defendant claims the trial court imposed a $30 court facility fee and the written order erroneously reflects a $20 court facility fee. The trial court imposed a $20 court security surcharge fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facility fee (Gov. Code, § 70373). The probation order correctly reflects these fees.
V. Presentence Conduct Credits
The Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to former section 4019 (see Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) are retroactive.*fn3
Pending a determinative resolution of the issue, we adhere to the conclusion that the amendments apply to all appeals pending at the time of their enactment. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment following award of custody credits].) The subsequent amendments to sections 2933 and 4019, which went into effect on September 28, 2010 (see Stats. 2010, ch. 426, §§ 1, 2, 5), are not applicable to defendant because he was not sentenced to state prison.
The probation report does not indicate that defendant has any prior felony convictions for a "serious" or violent felony (§§ 667.5, subd. (c), 1192.7, subd. (c)) or is subject to registration as a sex offender (§ 290 et seq.). His present felony conviction also is not within those categories excepted from additional accrual of credit. (§ 4019, former subds. (b)(2) & (c)(2) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) Under the applicable formula effective January 28, 2010, which required a minimum period of actual presentence custody of four days before applying any conduct credits, defendant's two days of actual credit do not entitle him to any conduct credit.
The judgment (order of probation) is ordered to be corrected to reflect a $200 restitution fine and a $222.29 main jail booking fee. A copy of the corrected probation order shall be forwarded to the Sacramento County Probation Department. The judgment (order of probation) is affirmed.
NICHOLSON , Acting P.J.