IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 6, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALBERT ARTHUR DENNIS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F08211)
The opinion of the court was delivered by: Butz , J.
P. v. Dennis
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Albert Arthur Dennis appeals from his convictions for first degree murder and assault with a firearm. He contends the trial court erred in admitting the 911 call of the victim as she died; there was insufficient evidence to support his ability to pay the jail booking and classification fees; and there is insufficient evidence to support the direct victim restitution award. We shall affirm.
Kelly Strong, Linda Saelee and the victim, Amber Manoa, knew each other through dating and drug deals. Strong had introduced Saelee to Manoa during a drug deal where they exchanged $50 of methamphetamine for Saelee's cell phone. Manoa used the cell phone to call Saelee's drug contacts, informed them Saelee was no longer selling drugs and made sales herself. Strong cautioned her against doing this. Saelee was angry about this and wanted her cell phone back.
Tonisha Elder and her live-in boyfriend, defendant, lived around the corner from Saelee. The trio had been together when they decided to buy drugs from Manoa. Saelee called Manoa and arranged to purchase $50 of methamphetamine from her. They agreed to meet at Saelee's apartment. Defendant told Elder he was going to wait for Manoa, scare her and steal her drugs. He had a gun he was going to use to scare her, but no one was supposed to be killed or injured. Saelee and Elder went to Saelee's apartment and defendant left. At about 1:00 a.m., Elder met defendant and gave him a bottle of gin. Elder last saw defendant walking toward their apartment wearing jeans, a white shirt and a black hooded sweatshirt.
Manoa and Strong met and headed to Saelee's apartment for the drug deal at about 4:00 a.m. Elder and Saelee did not have enough money to buy the $50 of methamphetamine. Manoa appeared uncomfortable with Saelee. She asked Strong if Saelee had ever been "janky," or dishonest about a transaction. Elder then purchased $20 of methamphetamine from Manoa.
Manoa and Strong left the apartment and returned to the car. As they were getting in, Strong saw a male dressed in a long-sleeved hooded sweatshirt, a baseball cap, gloves and a ski mask run up from behind them and fire a gun at them. Strong was shot in the foot and fell into the passenger seat. The shooter fired more shots while standing in the passenger side door jamb. He leaned over Strong, hit him with the gun and demanded, "Where's it at?" "Where's it at?" "Give it up." Strong told the shooter he did not have anything. The shooter appeared focused on Manoa, and ran behind the car to the driver's side, where Manoa was. This gave Strong the chance to get away. He crawled away from the car, climbed a fence and hid. He heard more shots fired, got up and ran farther away. Eventually he stopped at a house and asked them to call an ambulance.
A number of neighbors heard the gunshots as well. Joel Perez looked out his window when he heard the shots. He saw one man holding a gun and shooting at another, who was running away. The shooter was wearing a black hooded sweatshirt pulled up over his head, with the sleeves pulled down over his hands. After briefly following the fleeing man, the shooter returned to the car, aimed his gun at the crying woman in the driver's seat, and shot her four or five times.
Freddy Lara heard two men fighting. He saw one man pull out a gun and shoot the other, who was running away. The shooter was wearing black pants, a black shirt and a hood pulled over his head. After briefly pursuing the fleeing man, the shooter returned to the car and shot the woman in the parked car. He then turned back and jumped a fence.
Other neighbors heard arguing, then gunshots, screeching tires and a car taking off fast.
Descriptions of the shooter varied. Strong testified the shooter was light-skinned, "mixed-race, yellowish skin," the shooter's voice was deep, and he thought the shooter was about his height, between five feet 11 inches and six feet two inches. Defendant is actually a couple of inches shorter than Strong, his skin color different than Strong described and when played a tape of defendant's voice, Strong did not recognize it. Perez testified the shooter was about five feet tall and weighed about 170 pounds. Lara described the shooter as thin, between five feet seven inches and six feet with dark skin.
James Woodberry, a homeless man, was in a transient encampment set up in a vacant lot across from Saelee's apartment complex. He had taken both morphine and crack cocaine prior to the shooting. At about 1:00 or 2:00 a.m., he was awakened in the lot by an African-American man wearing dark clothing and a hoodie, smoking cigarettes, drinking alcohol and holding a firearm. The man was no taller than five feet 11 inches and of medium build. The man was pacing the fence line and appeared to be waiting to rob someone. He also threatened to shoot Woodberry. Later, Woodberry heard gunshots and the man was gone from the lot.
Manoa died of gunshot wounds. The fatal wound entered her outer left thigh and tore an artery and vein. She sustained two other potentially fatal wounds in the crease of her left thigh and lower abdomen and another on her left side which lacerated her kidney and entered her spinal cord. She sustained another more superficial bullet wound and had three deep contusions on her skull. She sustained a total of 18 gunshot wounds, with five initial entry wounds. The shots were fired from above and slightly behind her position seated in the driver's seat. Defendant's fingerprints were found on the exterior driver's side of Manoa's car at a downward angle. At the bottom of the window, where the frame meets the window, defendant's left palm print was found. There were over 120 fingerprints lifted from the car, 11 that were identified as known individuals. Many of the prints were not of sufficiently high quality to be compared with known prints.
Police found a pack of Newport cigarettes, the brand defendant smoked, and a gin bottle in the vacant yard. Defendant's fingerprints were not on either the cigarettes or the bottle. Defendant's DNA was found on the mouth of the gin bottle.
Defendant was charged with murder (Pen. Code, § 187, subd. (a))*fn1 and assault with a firearm (§ 245, subd. (a)(2)). Special circumstances were alleged that defendant committed the murder during an attempted robbery (§ 190.2, subd. (a)(17)) and was lying in wait (§ 190.2, subd. (a)(15)). It was further alleged defendant personally discharged a firearm (§ 12022.53, subds. (b)-(d)) and had a prior strike conviction (§ 667, subds. (a), (b)-(i) [1999 robbery]).
Following a jury trial, defendant was found guilty of first degree murder and assault with a firearm. The jury found the personal discharge of a firearm enhancement and the attempted robbery special circumstance allegations true, but found the lying-in-wait special circumstance allegation not true. In bifurcated proceedings, the trial court found the prior conviction allegations true.
Defendant was sentenced to life in state prison without the possibility of parole on the murder conviction, plus 25 years to life for the gun use enhancement, plus five years for the serious felony conviction enhancement and eight years for the assault with a firearm, plus five years for the serious felony conviction enhancement. All the terms were run consecutively.
The court imposed a main jail booking fee of $263.85 and a jail classification fee of $28.75. As to restitution, the probation report indicated Jeff L., the father and guardian of Manoa's young daughter, had paid "approximately $5,000 for funeral/burial costs" of Manoa. He was not certain of the exact amount, but indicated he would call back with the information. Strong filed a claim with the Victims Compensation and Government Claims Board for $135.34 in medical/dental benefits. The probation officer recommended determining restitution to Jeff L. at a later date, and ordering restitution of $135.34 to the Victims Compensation and Government Claims Board. The court ordered $5,135.34 in victim restitution with an additional amount to be determined at a later date, and ordered restitution of $136.34 to be paid to the victims of violent crime. The court also awarded defendant 481 days of custody credits. (§ 2933.1.)
I. Victim's 911 Call
Defendant contends the trial court prejudicially erred in admitting the victim's 911 call, on which she could be heard gasping, moaning and taking her dying breaths. We agree the court erred in admitting the evidence, but find the error was not prejudicial.
In his motions in limine, defendant moved to exclude the tape of Manoa's 911 call, contending it did not include any words or background information, only her gasping for air and moaning as she died. Defendant accepted the time of the call might be relevant, but the content of the call had no probative value and hearing the victim's "gasping could only stimulate sympathy and have an unfairly prejudicial impact" on the jury. The People offered the tape was relevant to "show the time that she was still alive after being shot several times . . . . She had enough dexterity in her to call 911 and sit and hold the phone and continue to stay alive. [¶] So, it's relevant for time line at what point she is able to make that call from her phone and the time in which she stayed alive before then being deceased when responding officers get there and contact her that she's closed up in her car, that nobody else comes up. [¶] You can hear nothing else except her gurgling. There is a time lapse between her being shot, the defendant fleeing from her car and responding officers get there. [¶] The condition of the car, her body, whether anybody else came up to her body, is relevant. So to play that tape to show no, it's her gurgling there's no one trying to help her, there's no door slamming, that's relevant. [¶] . . . [I]t is an open line that stays open on her phone and so it's highly relevant to give the jury a glimpse into what was happening during the time that she's sitting in her car." The court found the evidence admissible.
A trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. (Evid. Code, § 352; People v. Riggs (2008) 44 Cal.4th 248, 290.) The fact that the evidence undermines or bolsters a party's position does not makes the evidence unduly prejudicial, it makes it relevant. By definition, all relevant evidence tips the scales of the balance in one direction or the other. (People v. Cudjo (1993) 6 Cal.4th 585, 609; Evid. Code, § 210.) Rather, evidence is unduly prejudicial when it "'uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.'" (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.) "'"In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose."'" (People v. Scott (2011) 52 Cal.4th 452, 491.)
In striking the balance between the probative and the unduly prejudicial, the court "should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons to sway the jury . . . . On the other hand, irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role or invites an irrational, purely subjective response should be curtailed." (People v. Haskett (1982) 30 Cal.3d 841, 864.)
Here, the content of the 911 tape was not relevant to any material issue in dispute. It did not describe the scene of the murder. (People v. Roybal (1998) 19 Cal.4th 481, 516-517.) Nor did the tape rebut any alternate theories offered by the defense. (People v. Welch (1972) 8 Cal.3d 106, 116-117.) Unlike cases in which the 911 call from the crime scene is admitted, here, the tape did not provide any material background information. Indeed, the only information to be gleaned from the tape was the time of the call and the fact of Manoa's death. This being a murder case in which Manoa's death was undisputed, her death was a fact already known. The time of the call was available from other, less inflammatory, sources, "thus avoiding inflaming the passions of the jury by so vividly recreating the aftermath of the shooting. Absent a good reason there was no need to 'fill the courtroom with [the victim's] groans' (People v. Love (1960) 53 Cal.2d 843, 857)" (People v. Farmer (1989) 47 Cal.3d 888, 907), gasps and gurgling dying breaths.
Accordingly, we find the trial court abused its discretion in admitting the 911 tape. (See People v. Brady (2010) 50 Cal.4th 547, 575.) We do not, however, find the error was prejudicial. That is, there has been no showing that the error resulted in fundamental unfairness, and it is not reasonably probable the verdict would have been more favorable to defendant absent the error. (People v. Watson (2008) 43 Cal.4th 652, 686; People v. Partida (2005) 37 Cal.4th 428, 432, 439.)
Defendant's defense was primarily to try to implicate a third party, particularly Saelee and her boyfriend, Jason Brahan. He relied on inconsistencies in the witness descriptions of his clothing, that some of the physical descriptions matched Brahan more closely than him, the numerous fingerprints found in Manoa's car, and the fact that the shooting occurred in a high crime area. But, the evidence against defendant was strong. Defendant and his friends arranged a drug purchase from Manoa. Defendant planned to wait for Manoa to arrive to complete the drug transaction, scare her with a gun and steal her drugs. Before the shooting, a homeless man in a lot across from where the shooting occurred was awakened by a man in dark, hooded sweatshirt, smoking cigarettes, drinking a bottle of alcohol and holding a gun. Defendant's DNA was found on the mouth of the gin bottle in the vacant lot. Defendant was wearing clothing that matched the description given by various eyewitnesses. Defendant's fingerprints and a palm print were found on the exterior driver's side of Manoa's car. The fingerprints were located in a position on the car that was consistent with where the shooter would have been standing. On this record, there is no reasonable probability that the jury would have reached a verdict more favorable to defendant if the 911 tape had not been admitted.
II. Jail Booking and Classification Fees
Defendant next contends there is insufficient evidence to support the trial court's finding that defendant had the ability to pay jail booking and classification fees. Accordingly, he contends those fees should be stricken. We disagree.
Under Government Code section 29550.2, subdivision (a), "Any person booked into a county jail pursuant to any arrest . . . is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c) . . . . If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action . . . ." Subdivision (c) of the same section authorizes fees for booking and classification while in jail.
Defendant claims that since the statute is predicated on a defendant's ability to pay and there was no evidence before the trial court that he had such ability, the fees were improperly imposed. The Attorney General counters that defendant forfeited this issue by not objecting to payment of the jail fees in the trial court. We agree with the Attorney General.
This court has previously held that if a defendant does not object in the trial court to the imposition of a fee or fine, the issue is forfeited. (People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine--Pen. Code, § 1202.5, subd. (a)]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail booking fee--Gov. Code, § 29550.2].) We have applied the forfeiture rule, even when the claim on appeal is that there is not sufficient evidence to support the imposition of the fine or fee. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 (Gibson) [restitution fine--Gov. Code, former § 13967, subd. (a)].)
The Sixth Appellate District, however, has concluded that appeals challenging the imposition of fines and fees based on claims of insufficient evidence "do not require assertion in the court below to be preserved on appeal." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397, citing People v. Viray (2005) 134 Cal.App.4th 1186, 1217.) This holding created a conflict between Pacheco and the cases cited above. The California Supreme Court has agreed to resolve the conflict. (See People v. McCullough (2011) 193 Cal.App.4th 864, review granted on June 29, 2011, S192513.)
Until the California Supreme Court issues further guidance, we continue to adhere to our holding in Gibson; i.e., that a failure to object to a fee or fine in the trial court forfeits the issue, even where the statute contemplates a judicial finding of ability to pay and the defendant challenges the sufficiency of the evidence to support such a finding. (Gibson, supra, 27 Cal.App.4th at pp. 1467, 1468-1469.) "As a matter of fairness to the trial court, a defendant should not be permitted to assert for the first time on appeal a procedural defect in imposition of a restitution fine, i.e., the trial court's alleged failure to consider defendant's ability to pay the fine. [Citation.] Rather, a defendant must make a timely objection in the trial court in order to give that court an opportunity to correct the error; failure to object should preclude reversal of the order on appeal." (Gibson, at p. 1468.) Not applying forfeiture principles in such cases not only encourages attorney gamesmanship, but depletes judicial resources and wastes taxpayer money. (See Gibson, at pp. 1468-1469.)
Accordingly, we conclude that defendant's failure to raise the issue of his ability to pay the main jail classification fee and main jail booking fee in the trial court precludes review for the first time on appeal.
III. Victim Restitution Order
Defendant's next contention is that there is insufficient evidence supporting the victim restitution order. Specifically, he claims: (1) it is unclear if Jeff L. qualified as a victim or derivative victim under the statute; (2) the "vague statement" by Jeff L. that he had paid "approximately $5,000" for funeral/burial expenses was not substantial evidence upon which to base a restitution order; and (3) the trial court improperly ordered restitution to both Strong and the Victims Compensation and Government Claims Board for benefits paid to Strong. Defendant did not object to the amounts imposed by the court. Nor did defendant request a restitution hearing, after the court articulated the amounts imposed and advised defendant "If you're not satisfied with the restitution determination, you're entitled to a hearing." Accordingly, this issue has also been forfeited. (People v. O'Neal (2004) 122 Cal.App.4th 817, 820; People v. Le (1995) 39 Cal.App.4th 1518, 1523.)
IV. Correction to Abstract of Judgment
Defendant's final contention is that the abstract of judgment must be corrected to accurately reflect the oral pronouncement of judgment. The People properly concede this point.
The trial court's oral pronouncement of judgment is a judicial act and distinct from the entry of "judgment as pronounced in the minutes or records of the court." (People v. Hartsell (1973) 34 Cal.App.3d 8, 13.) Because entering the judgment in the minutes is a clerical function, "a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. 'The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation] it cannot add to or modify the judgment which it purports to digest or summarize.'" (People v. Mesa (1975) 14 Cal.3d 466, 471.) Here, the five-year enhancement imposed on the assault conviction is erroneously listed in the indeterminate abstract of judgment as attached to the murder conviction. On the determinate abstract, there is no enhancement attached to the assault conviction. In the judgment, however, each count was enhanced by a five-year enhancement pursuant to section 667, subdivision (a) and the abstracts must properly reflect that. Accordingly, we shall direct the trial court to correct (1) the determinate abstract of judgment to include a section 667, subdivision (a) enhancement and (2) the indeterminate abstract of judgment by deleting the second five-year enhancement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The judgment is affirmed. The trial court is directed to correct the abstracts of judgment by deleting one five-year enhancement from the murder conviction, leaving one five-year enhancement remaining on that conviction; and adding the five-year enhancement on the assault with a deadly weapon conviction. The court shall forward a certified copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. HOCH , J.