Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF060273, John G. Evans, Judge.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
Richli, J.
All statutory references are to the Penal Code unless stated otherwise.
Defendant John Paul Averna was charged by information with six criminal counts. Counts 1, 2, and 6 involved the offenses of robbery, burglary, and battery committed against Joan Haller on October 31, 2007. (§§ 211; 212.5, subd. (a); 242; and 459.) Count 3 involved a motorcycle theft committed on October 26, 2007. (Veh. Code, § 10851, subd (a).) Count 5 involved stolen property, a violation of section 496, subdivision (a), committed on November 5, 2007. Additionally, it was alleged defendant had been previously convicted of a serious and violent felony and served a prior prison sentence. (§§ 667, subds. (a) & (e)(1); 667.5, subd. (b); and 1170.2, subd. (c)(1).
Defendant pleaded guilty to count 4, possession of a firearm. (§ 12021, subd. (a)(1).) A jury convicted defendant of counts 1, 2, 5, and 6. It acquitted him of count 3.
The court sentenced defendant to a total prison term of 14 years four months.
On appeal, defendant accuses the prosecutor of a litany of misconduct, challenges the court’s sentence, and, in the alternative, asserts he received ineffective assistance of counsel. We reject defendant’s claims of error and affirm the judgment.
II. Factual and Procedural Background
A. October 26, 2007
Aaron Kulp testified that he owned a blue Suzuki motorcycle that was stolen on October 26, 2007, from the parking lot of the City of Indio’s City Hall. The police recovered the motorcycle on October 31, 2007.
Defendant presented a witness who stated he saw a person other than defendant pushing a motorcycle similar to Kulp’s on the morning the motorcycle was stolen.
B. October 31, 2007
Joan Haller was born in 1937 and was a widow, living in Indian Wells. In February 2007, Haller had hired defendant to do some painting inside her house for several days.
At 4:30 p.m. on October 31, 2007, a man came to Haller’s door wearing motorcycle clothes and a helmet. She could not see his face. He asked if “Timmy Baker” was present and she told him there was no one by that name. He departed on a “bluish” motorcycle that she identified in a photograph.
Two neighbors saw a motorcycle and a motorcyclist in Haller’s neighborhood. One saw him holding a white pillowcase.
Later Halloween night, Haller was home alone when there was a knock on the door. A person of similar build to her earlier visitor, and wearing a mask and a white sheet, stood outside the door, calling “trick or treat.” When she opened the door, the person yelled at her and pushed her down, causing her to hit her head. The intruder crouched over her, yelling and growling, before going into the bedroom and pulling out a dresser drawer. Haller ran into the street, screaming to her neighbors for help.
After the intruder left, Haller found missing some earrings and two.25-caliber Titan handguns that she kept in a nightstand drawer.
When a deputy sheriff responded, he located Kulp’s stolen blue Suzuki motorcycle, with a helmet affixed, parked near Haller’s residence. The police collected forensic evidence at the scene, including sunglasses, a Halloween mask, a jewelry box, a white sheet, the helmet, and photographs of shoe impressions.
When the police apprehended defendant, he was in possession of a backpack and wearing Converse tennis shoes. The backpack contained defendant’s wallet and two.25-caliber Titan handguns.
Haller identified defendant in a photographic lineup as a person she recognized. The fingerprint expert testified that prints taken from the motorcycle helmet matched those of defendant. The samples of DNA from the mask matched defendant’s DNA. The shoe impressions were similar to defendant’s shoes.
III. Analysis
A. Prosecutorial Error
Defendant’s constant theme during the case and reiterated on appeal is that the prosecutor did not comply with the obligations of discovery and disclosure, imposed by sections 1054.1 and 1054.7, by introducing surprise witnesses and evidence. We have reviewed these claims of prosecutorial error and conclude there were either no discovery or disclosure violations, or there was no prejudice, or both.
At trial, defense counsel objected to testimony about shoeprint impressions. Defense counsel also asserted he had not received complete fingerprint evidence. Additionally, he objected to testimony about fingerprint cards, the contents of a bag and Haller’s jewelry box, and items found in defendant’s backpack, particularly pawnshop receipts. He further protested testimony from expert witnesses who had not submitted curriculum vitas, thus inhibiting his cross-examination regarding their qualifications. Finally, he objected to the admission of DNA exhibits used by the DNA expert, Virginia Sadl, to explain her testimony. In each instance, the court permitted the evidence.
Section 1054.1 requires a prosecutor to disclose information about intended witnesses, all evidence including exculpatory evidence, and statements of intended witnesses. A failure to disclose is subject to a harmless error analysis. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) Federal constitutional due process also requires disclosure of material exculpatory evidence where there is a reasonable probability the outcome at trial would have been different. (People v. Cook (2006) 39 Cal.4th 566, 587, citing Brady v. Maryland (1963) 373 U.S. 83, 86-87.)
In the present case, defendant does not claim the prosecutor did not disclose witnesses or evidence so much as he complains the prosecutor should have made the disclosures earlier and should have facilitated defense counsel’s inspection of the physical evidence. Although the trial court acknowledged the prosecution’s disclosures were not made within 30 days of trial, the court still ruled there was good cause to allow all of the disputed evidence. Defendant has not affirmatively demonstrated to us the trial court erred in its ruling on this point. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Regarding the bag, the jewelry box, and the backpack, they were all identified in the People’s original exhibit list. Even if their contents were relevant and material (and it seems mostly they were not), defense counsel could have inspected the items before trial and thereby avoided any “surprise.” Notwithstanding, defendant does not identify any significant prejudice resulting from this evidence.
Defendant’s objections about shoe print evidence lacked merit because defendant counsel was on notice before trial that shoe print evidence would be part of the prosecution’s case. Defendant’s tennis shoes and photographs of shoe prints were listed on the People’s original exhibit list.
The prosecutor’s delay in providing vitas for the two expert witnesses also does not constitute prejudice. Defense counsel could have requested the information earlier but he was still able to cross-examine the experts on their qualifications and the court instructed the jury it could consider the delay when weighing the witnesses’ testimony.
The demonstrative DNA charts used by the DNA expert were properly allowed because they were used, not as analysis of the DNA evidence, but to explain her testimony. Defendant’s own DNA expert could have commented on the charts but did not do so.
Lastly, defendant’s objections about the fingerprint evidence concerned either smudged fingerprints that were not “of sufficient quality” or additional fingerprints that did not match defendant’s and were not material on the issue of guilt or innocence.
We agree the evidence supporting defendant’s convictions was overwhelming. His DNA was on the mask used in the robbery. His fingerprints were on the motorcycle helmet. His shoe prints were similar to those at the scene. He was arrested in possession of Haller’s guns. A more favorable outcome was not reasonably probable.
B. Leading Questions, Hearsay Evidence, and Shoe Print Evidence
Defendant invites this court to review 38 pages of purportedly leading questions and to conclude the prosecutor violated due process. (Evid. Code, §§ 764 and 767.) We adopt the analysis used in People v. Friend (2009) 47 Cal.4th 1, 39: “Defendant failed to object to many of the asserted leading questions he cites on appeal, thus forfeiting the claims. The trial court sustained defendant’s objections to some leading questions, thus obviating any prejudice. Regarding any asserted leading question cited on appeal to which the trial court overruled an objection, we see no abuse of discretion in the court’s rulings and no prejudice to defendant. We likewise see no prejudice from any of the leading question claims cited on appeal that were forfeited for failure to object.”
Defendant also cites three instances of objectionable hearsay evidence: when Haller’s neighbor testified about why she contacted the police; when a deputy sheriff testified about a witness’s description of the suspect to explain his subsequent search; and, when, to explain efforts to identify defendant as the perpetrator, a second officer testified he was told the motorcycle was stolen and also about what a third officer said to defendant in a pretext telephone call. All of these statements were properly characterized as not being offered for the truth of the matter asserted. (People v. Jablonski (2006) 37 Cal.4th 774, 820-821; People v. Anthony O. (1992) 5 Cal.App.4th 428, 435.)
Defendant also argues the shoe print evidence, which the criminalist developed by comparing the similarity of defendant’s shoe prints with crime scene photographs of shoe prints, was not admissible: “Jurors could judge for themselves whether the sole patterns on these items looked the same. ‘Where, as here, a procedure isolates physical evidence whose existence, appearance, nature, and meaning are obvious to the senses of a layperson, the reliability of the process in producing that result is equally apparent and need not be debated under the standards of [People v. Kelly (1976)] 17 Cal.3d 24.’ [Citations.]” (People v. DePriest (2007) 42 Cal.4th 1, 39-40.) The shoe print evidence was properly admitted.
D. Sentencing and Restitution
The court sentenced defendant to the upper term of six years on the robbery count, which was doubled to 12 years. (§§ 213, subd. (a)(1)(B); 667, subds. (a) & (e)(1); and 1170.12, subd. (c)(1).) The court also imposed a consecutive one year and four months term for count 4 and another consecutive one-year term for the prison prior. (§ 667.5, subd. (b).) The term on count 2 was stayed and the term on count 5 was ordered to be served concurrently. The court ordered a $10,000 restitution fine (§ 12024.4, subd. (b)) and $4,900 in victim restitution to compensate Haller for installing a home alarm system. (§ 1202.4, subd. (f)(3)(J).) Defendant challenges the upper term and the amount of the two fines.
1. Upper Term for Robbery
We conclude there was no abuse of discretion in imposing the upper term for robbery. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A single aggravating factor may justify the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) The court may disregard any mitigating factor. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Here the court considered the totality of the circumstances, particularly defendant’s “long history of criminal conduct, convictions for violent crimes and... poor performance on probation and parole, ” combined with his conviction for assault and burglary in the present case.
Because the court used two of defendant’s prior convictions to enhance his sentence under sections 667, subdivisions (c) and (e)(1), 667.5, subdivision (b), and 1170.12, subdivisions (c)(1), defendant objects to what he characterizes as the court’s dual use of facts in relying on his extensive history of prior convictions. Between 1987 and 2005, defendant was charged with 14 misdemeanors, four felonies, and six vehicle infractions. He has been in jail on 12 separate occasions and in prison three times. His long and repetitive criminal history justifies the upper term for the robbery count of this new set of crimes. (People v. Black (2007) 41 Cal.4th 799, 816.)
Furthermore, defendant’s use of force against Haller constituted two aggravating factors: threat of great bodily harm and violent conduct endangering society. (Cal. Rules of Court, rules 4.421(a)(1) and (b)(1).) It is well established that the particular circumstances of an offense, such as the manner of its commission, are not “elements” subject to the proscription against dual use of facts. (In re Michael L. (1985) 39 Cal.3d 81, 88; People v. Garcia (1995) 32 Cal.App.4th 1756, 1776.)
The totality of the record supports the trial court’s proper exercise of discretion in sentencing defendant.
2. Restitution Fines
Section 1202.4 allows a restitution fine between $200 and $10,000: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, ...”
In his appellate briefs, defendant cites a number of cases in which appellate courts have upheld restitution fines of less than $10,000, for crimes arguably worse than those at issue here, and one case in which the appellate court upheld a $10,000 restitution fine for first degree murder. (People v. Blackburn (1999) 72 Cal.App.4th 1520.) Defendant has not cited any case in which a court has found that a $10,000 restitution fine should be reversed because it was not commensurate with the seriousness of the offense and constituted an abuse of discretion by the court.
In setting the amount of the restitution fine, the relevant factors include, but are not limited to: “the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, ... Those losses may include pecuniary losses to the victim... as well as intangible losses, such as psychological harm caused by the crime.... Express findings by the court as to the factors bearing on the amount of the fine shall not be required.” (§ 1202.4, subd. (d).)
Here the court obviously considered the seriousness and the circumstances of defendant’s crimes and the damaging effects on Haller, the older, widowed victim. Her statement to the court about the ongoing emotional damage she suffered was extremely compelling. A trial court’s discretion to order victim restitution is not unlimited but an order will be reversed only if it is arbitrary and capricious. (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) Based on the foregoing, there was no abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
Haller was also entitled to restitution for the cost of a home security system as provided by section 1202.4, subdivision (f)(3)(J). Although defendant may be entitled to a hearing in the trial court to challenge the $4,900 amount, it is not grounds for appeal. (§ 1202.4, subd. (f)(1).)
IV. Disposition
In the absence of error, we also do not find ineffective assistance of counsel. We affirm the judgment.
We concur: Ramirez P.J., King J.