Opinion
H049101
07-13-2022
THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE BARBOSA, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 19CR014150
Lie, J.
The People filed a single information charging Stephanie Barbosa with five offenses arising from three separate occasions and two separate domestic relationships. As to John Doe 1, Stephanie Barbosa was charged with felony vandalism, misdemeanor corporal injury to a spouse or cohabitant, misdemeanor petty theft, and, eventually, misdemeanor violation of a domestic violence restraining order; as to John Doe 2, Barbosa was charged with misdemeanor corporal injury to a spouse or cohabitant. Following a court trial, the trial court found Barbosa guilty as charged and placed her on probation.
We accept the Attorney General's concession on appeal that (1) Barbosa received ineffective assistance of counsel as to the misdemeanor corporal injury charge involving Doe 2 because her attorney failed to object to its consolidation with the Doe 1 charges by information, where the evidence in support of the corporal injury to Doe 2 had not been presented at the preliminary hearing; (2) there was insufficient evidence that Barbosa had notice of the Doe 1 protective order she was convicted of willfully violating; and (3) Barbosa is entitled to vacatur of the order imposing criminal justice administration fees, costs for the preparation of a probation report, and probation supervision fees, to the extent they remain unpaid as of July 1, 2021.
As to the sole disputed claim that there was insufficient evidence that the damage to Doe 1's vehicles exceeded the $400 threshold distinguishing felony from misdemeanor vandalism, we conclude that admissible evidence of the projected cost to repair Doe 1's vehicles was sufficient to support the trial court's ruling.
I. BACKGROUND
A. John Doe 1 (Monterey County Case Numbers 19CR014150 and 20CR001276)
On November 13, 2019, Doe 1 was at home when he received a text message from Barbosa, whom he was dating, telling him to come outside. Doe 1 went outside and saw Barbosa in the driveway. He asked her to leave, but she refused. As Doe 1 called 911, Barbosa lunged for his phone, causing a slight injury to his right hand. Doe 1 went into the house and closed the door.
While inside, Doe 1 heard banging coming from the front of the house and checked his security camera. He saw Barbosa striking the front door with a chair. Barbosa then used the chair to strike a white GMC Yukon XL SUV belonging to Doe 1's wife. Barbosa eventually left with two child car seats belonging to Doe 1 and his wife. Doe 1 later observed that his other vehicle, a Lexus, had damage to the driver's side door, and a booster seat lay nearby on the floor by the door. There was also damage to the frame of the doorway of Doe 1's house.
The District Attorney for the County of Monterey filed a complaint charging Barbosa in case number 19CR014150 with vandalism (Pen. Code, § 594, subd. (b)(1) ; count 1); misdemeanor corporal injury on spouse or intimate partner (§ 273.5, subd. (a); count 2); and misdemeanor petty theft (§ 484, subd. (a); count 3).
Unspecified statutory references are to the Penal Code.
In January 2020, Doe 1 obtained a five-year civil restraining order prohibiting Barbosa from, among other things, contacting or coming within 100 yards of him or his family, harassing them, or disturbing their peace. Barbosa continued to repeatedly contact Doe 1. She also posted about him on her public social media pages: she claimed that Doe 1 was a child molester, disclosed his address, posted about his daughter and brother, and stated that he is the owner of a dispensary. She also messaged others about Doe 1: on one such occasion, she sent his address and contact information to a third party, claiming that Doe 1 "had a hit on them."
The District Attorney filed a misdemeanor complaint in case number 20CR001276 charging Barbosa with violation of a protective order (§ 273.6, subd. (a)).
On June 19, 2020, following a preliminary examination in case number 19CR014150, the magistrate ordered Barbosa held to answer as to the vandalism charge and certified the two misdemeanor counts to be tried with the felony in superior court. The People filed an information alleging the same three counts. At the preliminary hearing, the People also presented Doe 1's testimony regarding the violations of the restraining order charged in 20CR001276.
B. John Doe 2 (Monterey County Case Number 20CR010044)
On November 12, 2020, Barbosa was at the home Doe 2 shares with several family members. Doe 2 and Barbosa had been dating for a few months that year, but the relationship was "rocky." That night, Doe 2 received a text from his brother complaining that Barbosa was yelling in the shower. After Doe 2 confronted her about the yelling, Barbosa had an "episode," which involved grunting, talking to herself, and smacking the mirror in the bathroom. Doe 2 moved her to his bedroom, but she started muttering to herself again and "making a mess of the bed" by "getting blankets" and "pushing everything around."
When Doe 2's father told him that Barbosa needed to leave, Doe 2 repeatedly offered to take her home, but she refused. Doe 2 eventually called the police and went outside himself. Doe 2 saw that Barbosa continued arguing with Doe 2's family inside the house until Doe 2's brother moved Barbosa out the door, retreated inside the house, and locked the door behind him. Outside, Doe 2 tried to calm Barbosa as she paced back and forth, but Barbosa started kicking the door of his car. She kicked Doe 2 in the shin and hit his arms, chest, and face, leaving a small cut to his lip.
The People charged Barbosa by another misdemeanor complaint in case number 20CR010044 with corporal injury (§ 273.5, subd. (a)) to Doe 2.
C. Consolidation, Trial, and Sentencing
Two days before the scheduled trial date, the People filed a motion to consolidate the three cases. Barbosa's counsel objected to consolidation only on the ground that joinder was unwarranted given the difference in the class of crimes and the relative weakness of the Doe 2 misdemeanor offense. The trial court granted the motion on March 11, 2021, and the People filed an amended information in case number 19CR014150 adding the misdemeanor charge of violating a protective order (§ 273.6, subd. (a); count 4) as to Doe 1 and corporal injury to a spouse or intimate partner (§ 273.5, subd. (a); count 5) as to Doe 2.
Following a court trial, the trial court found Barbosa guilty on all counts. At sentencing, the court denied Barbosa's motion under section 17, subdivision (b) to reduce count 1 to a misdemeanor, but suspended imposition of sentence for three years of formal probation supervision. The court included as a condition of probation that Barbosa not come within 100 yards of John Doe 1 or John Doe 2, their residences, vehicles, or places of employment. The court imposed a criminal justice administrative fee, probation report preparation fee, and monthly probation supervision fee. The court also ordered that Barbosa pay restitution to Doe 1 and Doe 2.
As of July 1, 2021, the statutory provisions pursuant to which the court ordered Barbosa to pay these fees were repealed, and newly-enacted section 1465.9 and Government Code section 6111 took effect. (Assem. Bill. No. 1869 (2019-2020 Reg. Sess.) §§ 62 & 11.) Accordingly, as the parties agree, Barbosa is entitled to relief from these fees to the extent of any balance unpaid as of July 1, 2021.
Barbosa timely appealed.
II. DISCUSSION
Barbosa raises the following arguments: (1) she received ineffective assistance of counsel because her attorney failed to object to consolidation of the Doe 1 and Doe 2 matters on the ground that there was no preliminary hearing as to the Doe 2 matter;
(2) there was no evidence that Barbosa knew of the existence of the protective order she was accused of violating; (3) there was insufficient evidence that the value of the damage to Doe 1's vehicles exceeded $400 because the evidence of the cost of repair should have been excluded as improper opinion testimony; and (4) the trial court should be directed to strike the criminal justice administration fees, costs for the preparation of a probation report, and probation supervision fees.
The Attorney General appropriately concedes the first, second, and fourth issues. With regard to the evidence regarding the value of Doe 1's vehicles (for count 1), we discern no abuse of discretion in the trial court's finding that Doe 1 was qualified to give an opinion on the cost of repairs.
A. Count 5: Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel under the federal and state constitutions, a defendant must show (1) deficient performance under an objective standard of professional reasonableness and (2) a reasonable probability, absent the error, of a more favorable result. (Stricklandv. Washington (1984) 466 U.S. 668, 691-692; People v. Mayfield (1993) 5 Cal.4th 142, 175 (Mayfield).) In reviewing a claim of ineffective assistance of counsel, we conduct an independent review of the record and the law. (Id. at p. 199.) We accept the Attorney General's concession of ineffective assistance because in opposing consolidation, Barbosa's counsel failed to preserve the irrefutable claim that the misdemeanor count as to Doe 2 was unsupported by evidence at the preliminary hearing.
Generally, misdemeanor offenses "must be prosecuted by written complaint under oath subscribed by the complainant." (§ 740; Medellin v. Superior Court (1985) 166 Cal.App.3d 290, 292.) Felony offenses may be prosecuted by information, subject to a magistrate's preliminary examination of the evidence and a finding of sufficient cause. (§§ 738, 872.) For a misdemeanor to be charged in an information, it too must be supported by evidence presented at a preliminary hearing. (Griffith v. Superior Court (2011) 196 Cal.App.4th 943, 953 (Griffith).) In other words, "no crime, be it a felony or a misdemeanor, can be included in an information unless it has been supported by a showing of probable cause at the preliminary hearing." (Id. at p. 954.) Absent a showing of probable cause at the preliminary hearing, the accused is entitled to have the charge set aside under section 995. (Griffith, supra, 196 Cal.App.4th at p. 954 [error to deny motion to set aside misdemeanor charged by information without evidence at preliminary examination].) Moreover, an information may not be amended "so as to charge an offense not shown by the evidence taken at the preliminary examination." (§ 1009.) "The case law is consistent in reiterating that a superior court lacks authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing." (People v. Burnett (1999) 71 Cal.App.4th 151, 179 (Burnett).)
Barbosa's counsel objected to consolidation only on the ground that joinder was unwarranted given the difference in the class of crimes and the relative weakness of the Doe 2 misdemeanor offense. This objection, however, was subject to the trial court's broad discretion under Penal Code section 954 to try charges together. Barbosa's counsel did not object on the ground that there had been no preliminary hearing for the misdemeanor count in Doe 2's case, and once the prosecution amended the information, Barbosa's counsel failed to seek to have the charge set aside. Under these circumstances, there was no tactical reason for counsel's failure to object on this ground. (Burnett, supra, 71 Cal.App.4th at p. 181 ["Since appellant could not constitutionally be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing, defense counsel should have objected or taken some action to protect appellant's rights"]; see also People v. Peyton (2009) 176 Cal.App.4th 642, 652.) Because the trial court lacked authority to try Barbosa for the post-preliminary hearing offense, she was prejudiced by counsel's failure to pursue her entitlement to have the charge set aside. (Griffith, supra, 196 Cal.App.4th at p. 954.)
B. Count 4: Sufficiency of the Evidence
Section 273.6, subdivision (a) prohibits "[a]ny intentional and knowing violation of a protective order." The Attorney General concedes that the conviction on this count was unsupported by sufficient evidence that Barbosa knew of the protective order. On its face, the operative protective order reflects that Barbosa was not present at the hearing at which the court issued the order. Although the issuing court ordered that Barbosa be served with the order, the prosecution at trial presented no proof of service. We accordingly accept the Attorney General's concession and reverse. Because the basis for reversal is evidentiary insufficiency and not trial error, Barbosa is entitled to acquittal on count 4 as a matter of law and shall not be subject to retrial on this count. (Burks v. United States (1978) 437 U.S. 1, 18.)
C. Count 1: Cost of Repair
Barbosa contends that the trial court lacked sufficient evidence to convict her of felony vandalism on the theory that the amount of defacement, damage, or destruction was not shown by admissible evidence to be $400 or more within the meaning of section 594, subdivision (b)(1). Specifically, Barbosa disputes the admissibility of Doe 1's opinion testimony, the only evidence quantifying the amount of damage, and therefore urges us to reduce the conviction to a misdemeanor. Because, as Barbosa concedes, the record reflects substantial evidence of Doe 1's specialized knowledge of auto body repair, the trial court did not abuse its discretion in admitting and relying on his expert opinion.
1. Legal Standard
On a claim for insufficiency of the evidence, we "review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).)
Evidence Code section 720 provides that "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) The witness's "special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony." (Evid. Code, § 720, subd. (b).) "A trial court's ultimate ruling on admissibility 'implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.' (Evid. Code, § 402, subd. (c).) We review the trial court's conclusions regarding foundational facts for substantial evidence." (People v. Selivanov (2016) 5 Cal.App.5th 726, 774 (Selivanov).)
Where a specific ground for exclusion of evidence has been properly preserved, we nonetheless may not disturb the verdict or finding unless we are "of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353, subd. (b), italics added.)
2. The Trial Court's Evidentiary Ruling
The trial court initially limited Doe 1's testimony about his anticipated costs of repair: "I haven't heard any foundation at all as to what [Doe 1's] opinion is based on. So the Court is going to sustain [Barbosa's foundation] objection unless there is some information about whether this opinion is based on something or whether it's a number pulled out of thin air."
Doe 1 testified at trial that he spoke to a couple of body shops but did not proceed with repairs after his insurance company informed him that he would have to pay a deductible of $2,500 per vehicle. Thereafter, he used "DentPro" on some of the dents and paid only for a "slight repair" for the Lexus. Overruling a defense objection, the court allowed Doe 1's testimony as to his insurance deductible "for a limited purpose."
Later, after speaking off the record with counsel, the trial court clarified this limited purpose, explaining that it had not received Doe 1's testimony as to his insurance deductible as competent evidence of damage under section 594, subdivision (b), but as a courtesy to obviate the need for Doe 1 to testify at a future restitution hearing: "[A]s I explained to the parties[,] certainly we sometimes give folks some latitude in order to not have people have to come to another evidentiary hearing for purposes of restitution. [¶] However, that is different than proving an element of the offense that is required here. So I just wanted to make that distinction." The trial court then referenced the prosecutor's off-record indication that she would recall Doe 1, which the prosecutor confirmed.
The prosecution responded by recalling Doe 1; Barbosa did not object. The prosecutor elicited foundational testimony as to Doe 1's experience valuing damage to motor vehicles. Specifically, Doe 1 testified that he had owned a used-car dealership from 2002 to 2009. In the operation of the dealership, he was required to value vehicles for purchase and sale, including vehicles with damage comparable to the damage Barbosa had caused to his own vehicles in November 2019. In running the dealership, Doe 1 also learned the cost of repairing such damage, as his dealership did not do the repairs itself.
Following this foundational line of questioning, Doe 1 testified that, based on his prior experience, he had an opinion as to the cost of repairing the damage Barbosa caused to his vehicles. The trial court overruled Barbosa's objection that any such opinion lacked foundation but invited Barbosa to "cross-examine [Doe 1] on the foundation that has been laid." Barbosa's counsel did not respond, however, and did not at that point examine Doe 1 as to his expert qualifications.
On the prosecutor's continued direct examination, Doe 1 opined that comparable damage to doors cost approximately $2,000 but varied according to the type of paint needed. Because the Lexus required metallic paint, he explained, this would increase the cost by a few hundred dollars. Accordingly, Doe 1 believed it would cost around $2,200-2,300 to repair the Lexus and approximately $2,000 to repair the GMC.
On cross-examination, Doe 1 added that he had paid to have approximately 1,000 vehicles repaired during the seven or eight years he had operated the used-car dealership. Barbosa renewed her foundational objection and asked that Doe 1's opinion testimony be stricken. The court overruled the objection and allowed the testimony to stand, finding that "sufficient foundation has been laid for [Doe 1's] estimates as to what it would cost to repair the type of damage that the GMC and the Lexus incurred."
3. Admissibility of Doe 1's Valuation of the Damage to His Vehicles
A necessary element of felony vandalism is damage of $400 or more. (§ 594, subd. (b)(1).) "If repairs have in fact not been made, the estimated cost of repairs [that are] reasonably necessary calls for expert testimony." (Smith v. Hill (1965) 237 Cal.App.2d 374, 388; Le Brun v. Richards (1930) 210 Cal. 308, 319-320.) Barbosa does not dispute that Doe 1 had "special knowledge, skill, experience, training, or education sufficient to qualify him as an expert" (Evid. Code, § 720) on the subject of auto body repair estimates; nor does she dispute that the trial court implicitly designated him as an expert. Rather, her sole argument for exclusion of his opinion is that the trial court "erred in presuming that Doe [1] had, in fact, been offered as an expert witness when the prosecution did not offer him as such." Barbosa contends that Doe 1's actual expertise is immaterial because "[i]n the absence of designation of Doe [1] as an expert, he was a lay witness and his testimony was limited to opinions rationally based upon his perceptions." Barbosa's unique claim, as we understand it and to the extent it was preserved, lacks merit.
It is true that neither the prosecutor nor the trial court expressly invoked Evidence Code section 720 or identified Doe 1 as an "expert." But as a threshold matter, Barbosa's objections in the trial court did not identify the singular contention she makes on appeal. To preserve an evidentiary claim for appellate review, defense counsel must make a timely objection "so stated as to make clear the specific ground" on which review is sought. (Evid. Code, § 353, subd. (a).) "If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial." (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).) Barbosa's trial objections related solely to the adequacy of the foundation for Doe 1's opinion, not whether his opinion should be precluded because the prosecutor had failed to expressly proffer him as an expert, or because the trial court had failed to expressly designate him as one irrespective of his qualifications. The trial court accordingly sustained the objection and, after the prosecutor cured the foundational defect by establishing Doe 1's specialized knowledge, reconsidered and overruled it. If, as Barbosa now contends, Doe 1's opinion was inadmissible not for a lack of expert foundation under Evidence Code section 720, but as an improper subject of lay opinion under Evidence Code section 800, her objection in the trial court should have been that the testimony was improper lay opinion. "A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (Partida, supra, 37 Cal.4th at p. 435.) Having based her objection in the trial court on the adequacy of Doe 1's expertise, rather than on the proper scope of a lay opinion, Barbosa did not preserve the latter claim on appeal.
On the merits, moreover, the gravamen of Barbosa's claim would contravene our obligation to "presume that a judgment or order of the trial court is correct" and indulge"' "[a]ll intendments and presumptions . . . to support it on matters as to which the record is silent." '" (People v. Giordano (2007) 42 Cal.4th 644, 666.) Even if we were to credit Barbosa's contention that the trial court persisted in considering Doe 1's opinion testimony as lay opinion, we review the court's ruling, not its rationale. (Selivanov, supra, 5 Cal.App.5th at p. 774.) To be sure, lay opinion is subject to different rules of admissibility than expert opinion. (People v. Chapple (2006) 138 Cal.App.4th 540, 547 (Chapple).) But it has long been the rule that "if testimony is admitted on a wrong theory, but is admissible under another theory, its admission under the wrong theory will not constitute error." (People v. Selby (1926) 198 Cal. 426, 430.) In other words, if evidence is admissible on any basis, "it is irrelevant that the trial court might have had a different theory of admissibility in mind. It is axiomatic that we review the trial court's rulings and not its reasoning." (People v. Mason (1991) 52 Cal.3d 909, 944.)
In Chapple, the trial court expressly ruled that the witness did not qualify as an expert. (Chapple, supra, 138 Cal.App.4th at p. 547.) The trial court here made no such ruling, and Barbosa concedes that it impliedly-and on substantial evidence-found Doe 1 qualified to render an expert opinion.
The trial court was appropriately dubious of Doe 1's opinion until the prosecution elicited specific, concrete testimony about his specialized experience and knowledge; once the prosecution established that foundation, Doe 1's opinion testimony met the requirements for expert testimony and supplied a basis for the trial court's finding that the cost of repairing Doe 1's vehicles was $400 or more. Absent any dispute as to the adequacy of Doe 1's qualifications, we discern no prejudice, much less the miscarriage of justice required to set aside the trial court's finding under Evidence Code section 353. Because Doe 1's testimony about the estimated cost of repairs was properly admitted, we conclude that the conviction for felony vandalism was supported by substantial evidence. (Rodriguez, supra, 20 Cal.4th at p. 11.)
III. DISPOSITION
The judgment is reversed and the matter remanded for possible retrial of only the misdemeanor violation of Penal Code section 273.5, subdivision (a) alleged as count 5; as to count 4, the trial court is directed to enter a verdict of acquittal. If the prosecution elects not to retry count 5, or at the conclusion of the retrial, the court shall resentence Barbosa. On resentencing, the court shall vacate the criminal justice administrative fee, the probation report preparation fee, and the probation supervision fee, as required by Penal Code section 1465.9 and Government Code section 6111, to the extent those fees were unpaid as of July 1, 2021.
WE CONCUR: GREENWOOD, P.J. GROVER, J.