Opinion
H051081
10-07-2024
THE PEOPLE, Plaintiff and Respondent, v. MARCUS HOOKS, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Benito County Super. Ct. No. CR2101110)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
A jury convicted defendant Marcus Hooks of one count of grand theft by false pretense (Pen. Code, §§ 484, 487, 532; count 1), and one count of conspiracy to commit grand theft by false pretense (§§ 182, 532; count 2). As to both counts, the jury found true two allegations of circumstances in aggravation of the offenses: (1) that the manner in which the crimes were committed indicated professionalism, planning, or sophistication (Cal. Rules of Court, rule 4.421(a)(8)); and (2) that defendant took advantage of a position of trust to commit the offenses (id., rule 4.421(a)(11)). The trial court sentenced defendant to the upper term of three years on count 1 and a concurrent sentence of three years (the upper term) on count 2 for a total sentence of three years, with two of these years to be served in county jail and the remaining year to be served under mandatory supervision.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant raises three arguments on appeal: (1) insufficient evidence supports the jury's finding that he took advantage of a position of trust to commit the offenses; (2) he received ineffective assistance of counsel when his trial counsel failed to object to the trial court's imposition of certain conditions regarding mandatory supervision; and (3) the trial court improperly imposed a concurrent sentence for count 2 instead of imposing and staying the punishment for count 2 under section 654.
For reasons discussed below, we find defendant has not established error concerning the first two issues, but we will order the judgment modified to reflect that the sentence for count 2 is imposed and that execution of the sentence for count 2 is stayed pursuant to section 654. As so modified, we will affirm the judgment.
II. BACKGROUND
Defendant's offenses concern a purported "lien sale" of a pickup truck. Before describing the evidence in this case, we provide a brief overview of statutory provisions regarding vehicle lien sales. "The vehicle service lien and the procedures for its enforcement are created and governed by statute. The procedure is administered by the Department of Motor Vehicles, and transfer of title to the lien sale purchaser is ultimately recorded by the department. Thus, although a private individual retains and sells the car, his [or her] power to do so arises from and is subject to specific provisions of state statute and his [or her] exercise of that power is supervised by the department." (Adams v. Department of Motor Vehicles (1974) 11 Cal.3d 146, 152.) "Every person has a lien dependent upon possession for the compensation to which the person is legally entitled for making repairs or performing labor upon, and furnishing supplies or materials for, and for the storage, repair, or safekeeping of, and for the rental of parking space for, any vehicle of a type subject to registration under the Vehicle Code ...." (Civ. Code, § 3068, subd. (a).)
"The lien shall be deemed to arise at the time a written statement of charges for completed work or services is presented to the registered owner or 15 days after the work or services are completed, whichever occurs first." (Ibid.) If the lienholder is not paid for the work or services, the lienholder may apply to the Department of Motor Vehicles (DMV) for authorization to conduct a sale of the vehicle to satisfy the lien. (Id., § 3068, subd. (b)(1).) The procedures required to conduct a lien sale vary based on the vehicle's value.
For a vehicle valued at $4,000 or less, the lienholder shall apply to the DMV for the names and addresses of the registered and legal owners of the vehicle. (Civ. Code, § 3072, subd. (a).) The lienholder shall then notify these parties and the DMV of the pending lien sale by certified mail. (Id., subd. (b).) If no opposition is received, the lienholder may proceed with the lien sale after posting a notice of the pending lien sale in a conspicuous place on the premises of the business office of the lienholder and at the site of the lien sale, if different from the lienholder's business office. (Id., subd. (f).) "The lienholder shall conduct the sale in a commercially reasonable manner." (Id., subd. (i).)
For a vehicle valued at more than $4,000, the lienholder shall apply to the DMV for authorization to conduct a lien sale and pay a filing fee. (Civ. Code, § 3071, subd. (a).) The lienholder is required to execute an application under penalty of perjury that contains required information, including "[a] statement of the amount of the lien and the facts that give rise to the lien." (Id., subd. (a)(3).) The DMV then notifies the vehicle registry agency of the vehicle's state of registration (if the vehicle bears indicia of registration in another state) and the registered and legal owners of the vehicle. (Id., subd. (b).) Upon receiving authorization from the DMV to conduct the lien sale, the lienholder shall provide at least five days' notice in a local newspaper of general circulation, and send a notice of the pending lien sale 20 days prior to the sale by certified mail to the registered and legal owners of the vehicle (if the vehicle is registered in California), to any other parties known to have an interest in the vehicle, and to the DMV. (Id., subd. (f).) As with vehicles valued at $4,000 or less, "[t]he lienholder shall conduct the sale in a commercially reasonable manner." (Id., subd. (j).)
On December 21, 2020, defendant signed a "Notice of Pending Lien Sale for Vehicle Valued $4000 or Less." The form stated that defendant intended to sell a 2017 Ram truck on January 21, 2021 to satisfy a $4,200 lien on the vehicle for towing and storage costs, plus the cost of conducting the lien sale. Defendant signed the document in his capacity as owner of Backyard Customs, a registered automobile repair facility. The form listed Chrysler Capital as the legal owner of the truck, and Alejandra Duarte as the truck's registered owner.
On January 21, 2021, Ricardo Duarte submitted an application for title or registration of the truck. This application stated that Ricardo purchased the truck for $1,500 and it listed no separate title holder for the truck. On the same date, both Ricardo and defendant signed a "Certification of Lien Sale for Vehicle Valued $4000 or Less," stating that defendant sold the truck on January 21, 2021 to Ricardo to satisfy defendant's $4,200 lien on the truck.
Because the evidence at trial referred to both Ricardo and Alejandra Duarte, we refer to them by their first names.
The Hollister DMV office referred the matter to DMV investigator Beatriz Thomas. Thomas testified that lien sales can only be conducted in certain situations, stating that under Civil Code section 3068, "there's very specific ramifications for who is allowed and why." Thomas testified that a lien sale may be conducted when an automotive repair facility registered with the Bureau of Automotive Repair applies to conduct a lien sale for work or services that have been performed for which the repair facility has not been paid. Thomas testified that different procedures are used for lien sales depending on whether the vehicle's worth is estimated at more than $4,000 or $4,000 or less, and that "[t]here are far more checks and balances for a vehicle that's valued over $4,000."
Thomas testified that the Hollister DMV office referred the matter to her "because they believed that the car should have been valued a lot higher than it was in order to conduct that lien sale that was valued under [$]4,000." Thomas testified that she estimated the 2017 Ram truck's worth at about $30,000, and thus she believed defendant wrongly used the procedures for conducting a lien sale of a vehicle valued at $4,000 or less. Thomas testified that the valuation of the truck mattered not only because fewer "checks and balances" are used for a vehicle valued at $4,000 or less, but also because the $1,500 valuation listed on Ricardo's application for registration or title "is the amount that we use and enter and request sales tax and other fees to be based on." Thomas testified that in a typical lien sale where the lienholder sells the vehicle to a disinterested third party for fair market value, the sales or use tax would be based off the sales price.
Thomas testified that during her investigation, she learned that Ricardo-who submitted the application for title or registration-and Alejandra-who was listed as the previous registered owner of the truck-lived at the same address. Asked if this was "unusual or suspicious," Thomas answered yes, stating that "[t]ypically if a lien sale took place, we wouldn't expect [the vehicle] to wind up in the same family that it left." She testified: "A lien sale is meant to happen to the public. So it's meant to be people that really have no relation to the vehicle at all."
Thomas testified that Chrysler Capital owned the title to the truck, a situation that typically occurs when the registered owner purchases the vehicle using financing from a party that retains title to the vehicle. Without the title, Thomas testified, a person in possession of a vehicle is not able to sell the vehicle for its full value. Thomas's investigation revealed no record that Chrysler Capital or anyone else opposed the lien sale of the truck. Thomas spoke with a representative of Chrysler Capital, who stated that Chrysler Capital was not aware of the lien on the truck and that Chrysler Capital believed they retained the legal title to the truck.
Thomas twice contacted defendant to obtain more information about the purported lien sale. The first time, defendant told Thomas that Alejandra brought the truck to defendant's repair shop with "front end damage, completely" and that defendant later could not contact Alejandra so he decided to conduct a lien sale of the truck. The second time, Thomas testified, defendant "changed his statement about being able to get ahold of the registered owner, and instead, stated that the owner had come to satisfy the lien; rather than what he'd said before, which was that he couldn't get a hold of the registered owner." If defendant's account in this second conversation were true, Thomas testified, there would be no need for a lien sale because the lien would be satisfied. During the second conversation, Thomas told defendant that she believed defendant should not have submitted documentation for a lien sale of a vehicle valued at $4,000 or less, because she "believe[d] the vehicle was valued far above $4,000." As a result, defendant filed documentation "several months" later to conduct a lien sale of a vehicle valued at more than $4,000, this time stating that his lien had increased to $8,000 due to storage costs incurred through July 21, 2021. Thomas testified that she knew the claimed storage costs in this second lien sale application were incorrect, because the truck was not in defendant's possession after January 2021. Defendant's second lien sale application was not processed, because the DMV had placed a hold on the vehicle.
At one point, Thomas asked defendant to bring repair invoices or estimates to Thomas's office; defendant replied that he would do so but never came to Thomas's office. Instead, defendant later mailed Thomas a "[p]reliminary [e]stimate" dated August 2020. The estimate stated that defendant's business estimated the cost to repair the truck at $18,823.38. Thomas testified that she reviewed records from the DMV, the National Crime Insurance Bureau, and CARFAX, and found no evidence that the truck had sustained any damage or had been reported as having been involved in any accidents.
On January 27, 2021, six days after Ricardo submitted the application for title or registration to the DMV and defendant notified the DMV of the purported lien sale, Mohsen Mohagerani inspected the truck for purchase after Ricardo listed it for sale on Craigslist. Mohagerani drove the truck and "checked everything," seeing no damage to the truck and finding it to be in "excellent condition." Mohagerani gave Ricardo a $500 cash deposit toward the truck's purchase. Mohagerani testified that he provided this cash deposit based on Ricardo's statement that Ricardo was waiting to receive title to the truck after having paid off a loan. Ricardo provided Mohagerani a signed statement that they had agreed on a $24,700 sale price for the truck, and that Mohagerani had paid Ricardo $500 cash, with "the balance . . . due once free &clear pink slip is provide[d] by Mr. R. Duarte as soon as he gets them from bank." Over the ensuing days, Mohagerani and Ricardo exchanged text messages in which Ricardo first stated that he expected to receive the title to the truck from the bank, and then stated that he could legally sell the truck without the title. Mohagerani testified that based on Ricardo's representations, Mohagerani later paid Ricardo the balance of the agreed-upon $24,700 purchase price.
Mohagerani testified that he never received title to the truck from Ricardo. Sasan Momeni, a friend of Mohagerani who owned a used car dealership, then paid Mohagerani $15,000 for the truck, with the amount being less than the truck's market value due to the difficulties in facilitating the legal transfer of the truck without the title. Momeni testified that the truck was in "[v]ery good condition." Momeni then attempted to sell the truck to another person for $30,800 but had to "unwind" the transaction due to not being able to obtain title to the truck. As a result, both Mohagerani and Momeni lost money. Momeni testified on cross examination that defendant came to the used car dealership twice, stating "he was there to pick up his truck." Momeni told defendant to go to the DMV investigation office.
Defendant did not testify at trial, and the defense presented no evidence. At the conclusion of the presentation of evidence, the prosecution moved to amend the information to add two circumstances in aggravation: that the manner in which the crime was committed indicated professionalism, planning, or sophistication, and that defendant took advantage of a position of trust to commit the offenses. Defendant's counsel objected to the amendment, arguing that the aggravating circumstances should have been pleaded earlier and that "there has not been sufficient evidence to show planning and sophistication ...." The trial court permitted the amendment, stating that it found no authority that prohibited the amendment at this stage and that the amendment would not result in unfair surprise to the defense.
In closing arguments, the prosecutor argued that defendant offered a "title washing service" to provide Ricardo clear title to the truck, arguing that this "title washing" theory explained why defendant attempted to make the second lien sale for a vehicle valued at more than $4,000 even though defendant told Thomas that Alejandra had paid the amount due for defendant's services. Thomas had earlier testified that title washing "comes in a variety of different forms, but the main premise is to get someone off of a title, mainly a legal owner." Thomas testified that title washing is done "[i]n order to obtain a free and clear title where they're the only ones listed as the registered owner," depriving the legal title owner of its interest in the vehicle. The prosecutor thus argued in closing: "Mr. Hooks offers a title washing service. That's what he did. He wasn't repairing the vehicle. The vehicle goes right back to Marcus Hooks to the party, Ricardo Duarte, who resells the vehicle within six days of driving it off that lot. No damage, nothing interesting happened, great condition vehicle. The only change in the thing, the legal owner. The legal owner is gone. There is no other reasonable interpretation." The prosecutor argued that defendant sold the truck to Ricardo for $1,500 as the fee for the title washing service, "[f]or using the fact that he had a Bureau of Automotive Repair license, and he could get that legal owner off that title."
The prosecutor also argued that both aggravating circumstances were proven to be true. With regard to the aggravating circumstance that defendant took advantage of a position of trust to commit the offenses, the prosecutor argued: "He had to have the Bureau of Automative Repair license so he can go through the lien process and do all of that." Later the prosecutor similarly argued: "And position of trust, yes, he did have an automotive repair certificate." Defendant's counsel argued that defendant was not guilty of the charged offenses, stating that Ricardo "is the one who should be on trial here today ...." Defendant's counsel argued that the second aggravating circumstance was not proven because "if anybody has a position of trust," it was Momeni, who owned the auto dealership and attempted to resell the truck without having received title to it. Later, defendant's counsel argued: "And [Ricardo] Duarte, if anybody is guilty of a violation of trust in this case, or knowledge, it would have been Mr. Duarte. Because he had actual knowledge that the title to this truck wasn't clear at the time he sold that ...." In rebuttal, the prosecutor again argued that defendant took advantage of a position of trust to commit the offenses "because he had this Bureau of Automotive Repair certificate."
The jury convicted defendant of both counts and found both allegations of circumstances in aggravation true. The trial court sentenced defendant to the upper term of three years on count 1 and a concurrent sentence of three years (the upper term) on count 2 for an aggregate sentence of three years, with two of these years served in county jail followed by a year of mandatory supervision. The trial court imposed various conditions on defendant's mandatory supervision, including to "abstain from the use or possession of controlled substances without a valid prescription," to "[a]bstain from the consumption of alcohol," to "[a]ttend such alcohol, drug, or counseling programs as determined by your probation officer or program coordinator," to "not use, possess, have access to, or have under your control, any dangerous or deadly weapons, firearms, stun guns, or OC pepper spray," and to "not be on or within 50 feet of any school campus during school hours, unless you're enrolled or have prior permission from the school administrator."
III. DISCUSSION
A. Sufficiency of Evidence, Second Allegation of Aggravating Circumstances
Defendant first argues that insufficient evidence supports the jury's finding that he took advantage of a position of trust to commit the offenses because the evidence demonstrates he had no interaction with Mohagerani, the person who purchased the truck from Ricardo. In response, the Attorney General argues that: (1) defendant forfeited this issue by failing to object to this aggravating factor at sentencing on the basis of lack of sufficient evidence; (2) if the issue is not considered forfeited, sufficient evidence demonstrates that defendant took advantage of a position of trust to commit the offenses because defendant used his position as owner of an automotive repair business registered with the Bureau of Automotive Repair to commit the offenses; and (3) defendant was not prejudiced by any error because the trial court would have imposed the same sentence regardless of the true finding on this aggravating circumstance. We conclude that defendant did not forfeit this issue, and that sufficient evidence supports the jury's finding that defendant took advantage of a position of trust to commit the offenses. Therefore, we need not address the Attorney General's argument that defendant was not prejudiced by any error in the jury's true finding on this aggravating circumstance.
1. Defendant did not forfeit his claim that the second aggravating circumstance was not supported by sufficient evidence.
Defendant objected to the amendment of the information to add the two aggravating circumstances. However, the Attorney General argues that defendant forfeited his claim because defendant "did not object on the basis that there was insufficient evidence that he abused a position of trust or confidence."
We conclude that defendant did not forfeit this claim. An objection is generally required to challenge on appeal a trial court's reliance on an improper factor in imposing a sentence. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) However, "[s]ufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal." (In re K.F. (2009) 173 Cal.App.4th 655, 660.) "Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they 'necessarily objected' to the sufficiency of the evidence by 'contesting [it] at trial.' [Citations.]" (People v. McCullough (2013) 56 Cal.4th 589, 596.) At trial, defendant's counsel argued in closing that the allegation that defendant used a position of trust to commit the offenses was not true. We therefore conclude that defendant has not forfeited this issue.
2. Sufficient evidence supports the jury's true finding on the second aggravating circumstance.
We review the sufficiency of the evidence" '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 aggravating circumstance allegation true beyond a reasonable doubt. (People v. Boyce (2014) 59 Cal.4th 672, 691 (Boyce).) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919.) "We must also 'accept logical inferences that the jury might have drawn from the circumstantial evidence.' [Citation.]" (People v. Flores (2020) 9 Cal.5th 371, 411.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "The role of an appellate court in reviewing the sufficiency of the evidence is limited." (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Boyce dealt with the sufficiency of the evidence regarding a special circumstance allegation, not an aggravating circumstance. (Boyce, supra, 59 Cal.4th at pp. 691-692.) However, defendant agrees that the substantial evidence test-the test Boyce utilized-is appropriate in analyzing this issue. We agree and apply the substantial evidence test in analyzing this issue.
For determinate sentencing under a three-tiered sentencing structure, section 1170, subdivision (b) previously provided that "the choice between the lower, middle, and upper terms 'shall rest within the sound discretion of the court,' with the court 'select[ing] the term which, in the court's discretion, best serves the interests of justice' and stating reasons for its decision. [Citation.]" (People v. Lynch (2024) 16 Cal.5th 730, 747 (Lynch).) "However, as of January 1, 2022, the Legislature . . . amended section 1170 to provide that the trial court 'shall,' in its discretion impose a sentence 'not to exceed the middle term' [citation] except in the following circumstance: 'The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of' an upper term sentence, and 'the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.' [Citations.] Notwithstanding these provisions, the court 'may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.' [Citation.]" (Id. at p. 748, fn. omitted.)
California Rules of Court, rule 4.421(a)(11) states that a circumstance in aggravation occurs when "[t]he defendant took advantage of a position of trust or confidence to commit the offense." Thomas testified that defendant's position as owner of a registered automotive repair facility enabled him to facilitate the lien sale. The prosecutor asked Thomas whether "anyone" can conduct a lien sale, and Thomas replied negatively. Conversely, Thomas testified that a business registered with the Bureau of Automotive Repair that is owed money for work or services performed is "authorized to conduct a lien sale for what the vehicle is valued, whether that's an under 4,000 or over 4,000 lien, and recuperate [sic] their costs through that process." Thus, the prosecutor argued in closing that defendant's status as owner of a registered automotive repair facility enabled him to commit the offenses through the lien sale paperwork, arguing that defendant "had to have the Bureau of Automotive Repair license so he can go through the lien process and do all of that."
The prosecution orally moved to amend the information to add the aggravating circumstance that defendant "took advantage of a position of trust or confidence to commit the offense." However, the trial court's instruction on this aggravating circumstance omitted the "or confidence" language, and the verdict forms and the transcript of the verdict in this matter state that the jury found only that defendant took advantage of a "position of trust." We therefore use the "position of trust" language in this analysis. The parties do not argue that the omission of the "or confidence" language in this matter should affect our analysis.
Defendant argues that the prosecution did not prove this aggravating circumstance based on the lack of evidence that defendant had a special relationship with the victim. He argues: "[T]he prosecutor did not present any evidence that Mohagerani, the victim, dealt with [defendant] or even knew of his existence. Because there is no evidence that [defendant] and Mohagerani had a special relationship, the matter must be remanded for resentencing so the trial court can determine if the upper term is warranted without the existence of this aggravating factor." Defendant asserts that "[t]he prosecutor did not present any evidence that Mohagerani knew of [defendant's] existence, believed that [defendant] had performed repairs on the Ram truck, or took any action based on [defendant's] representations." Defendant argues: "Instead, the evidence showed that Ricardo Duarte posted the truck for sale on Craigslist, texted with Mohagerani, negotiated a purchase price, and represented that he was getting proper title. [Citation.] Because [defendant] and Mohagerani did not have any conversations or dealings, it cannot be said beyond a reasonable doubt that [defendant] took advantage of a position of trust or confidence."
The Attorney General contends that sufficient evidence supports the jury's finding on this aggravating circumstance, asserting that "the law imposes no such requirement" that the victim interacted with defendant, only that defendant took advantage of a position of trust to commit the offenses. The Attorney General argues that defendant "abused his position of trust vis a vis the public by using his status as a licensed repair facility to commit his crimes," and that "[t]he fact that [defendant] was proprietor of a repair shop licensed by the Bureau of Automotive Repair enabled him to conduct fraudulent lien sales, something the general public is not allowed to do."
We conclude that sufficient evidence supports the jury's true finding on the allegation that defendant took advantage of a position of trust to commit the offenses, because defendant's position as the owner of a registered automotive repair facility placed him in a position of trust.
The Automotive Repair Act requires automotive repair facilities to register with the Bureau of Automotive Repair. (Bus. &Prof. Code, §§ 9884.2, 9884.6, subd. (a).) "The statutes and the regulations adopted pursuant to [the Automotive Repair Act] reveal the automobile repair industry is closely regulated. There are extensive, detailed regulations." (People v. Calvert (1993) 18 Cal.App.4th 1820, 1834.) "[M]uch of the regulatory scheme is directed toward consumer protection ...." (Ibid.)
The Automotive Repair Act further states: "A person required to have a valid registration under the provisions of this chapter shall not have the benefit of any lien for labor or materials, including the ability to charge storage fees in accordance with applicable laws, or the right to sue on a contract for motor vehicle repairs unless the person possesses a valid registration." (Bus. &Prof. Code, § 9884.16, subd. (a).) Accordingly, the ability to conduct vehicle lien sales has been understood to be limited to automotive repair facilities registered with the Bureau of Automotive Repair. (See People v. Hussain (2014) 231 Cal.App.4th 261, 265 ["A lien sale is based on a possessory lien for services and permits a licensed repair facility to sell a car to recoup repair costs and other expenses"]; 55 Ops.Cal.Atty.Gen. 276, 277 (1972) ["Very importantly, a dealer required under the [Automotive Repair] Act to register must be validly registered in order to sue or to claim the benefit of any lien for motor vehicle repairs [citation]"].) Thomas's testimony supports the conclusion that defendant's status as owner of a registered automotive repair facility enabled him to commit the offenses, as she testified that a lien sale can only be conducted in certain situations, including when a registered automotive repair facility completes work on a vehicle and is not paid for the work. Thus, sufficient evidence exists that defendant took advantage of a position of trust to commit the offenses.
Defendant argues that this aggravating circumstance required the prosecution to prove that he "had a special relationship" with Mohagerani. Defendant argues: "The relationship must be more than that of a creditor and debtor or employer and employee; typically, it requires a fiduciary or other special status with the victim." We do not agree that the prosecution was required to prove a "special relationship" existed between defendant and Mohagerani to prove this aggravating circumstance true.
Defendant cites no authority demonstrating that a "special relationship" must be proven for this aggravating circumstance to be found true. The California Rules of Court simply state that a circumstance in aggravation exists when "[t]he defendant took advantage of a position of trust or confidence to commit the offense," with no requirement of a special relationship between the defendant and the victim specified. (Cal. Rules of Court, rule 4.421(a)(11).) Defendant cites People v. Wooten (1996) 44 Cal.App.4th 1834 (Wooten) in support of his argument that a fiduciary or other special relationship between the defendant and victim is required to prove this aggravating circumstance. However, Wooten did not deal with this aggravating circumstance. Instead, the court in Wooten held that where the defendant was charged with embezzlement, a crime that "requires the existence of a 'relation of trust and confidence,' similar to a fiduciary relationship, between the victim and the perpetrator," the trial court erred in providing the jury with the standard embezzlement instruction because "[t]here was no evidence indicating the relationship between appellant and [the victim] was anything other than a standard debtor-creditor relationship." (Id. at pp. 1845-1846.) Wooten thus does not delineate the requirements for proving the aggravating circumstance at issue here.
Defendant also relies on a Sixth District Court of Appeal opinion, People v. Dancer (1996) 45 Cal.App.4th 1677 (Dancer), disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123, to support his position that a special relationship between the defendant and the victim is required to prove that the defendant took advantage of a position of trust to commit the offense(s). In Dancer, the trial court found this aggravating circumstance was applicable where the defendant, a friend to the victim's mother, sexually abused the four-year-old victim. (Id. at pp. 1683-1684, 1693, fn. 9.) The defendant argued that the evidence did not support the trial court's finding that he took advantage of a position of trust or confidence to commit the offense, arguing that "he was not a parent, relative, quasi-parent, volunteer or authorized babysitter, religious figure, or day-care provider," and that the victim's mother "did not trust defendant to be alone with" the victim. (Id. at p. 1694.) In review, this court stated: "As defendant acknowledges, this potential aggravating factor focuses on his' "special status"' vis-a-vis [the victim]. [Citation.]" (Ibid.) This court then rejected the defendant's argument concerning this aggravating circumstance, stating: "Defendant disregards the fact that he, an elderly man, intentionally ingratiated himself to a very young child, who had no resident father, brother, or playmates. He played with her, gave her things to eat, let her use his exercise equipment, and fostered a relationship in which [the victim] trusted and had confidence in him, so much so that she would defy her mother's warning not to go into defendant's garage." (Id. at pp. 1694-1695.)
Dancer did not specifically hold that a special relationship between the defendant and the victim is required for this aggravating circumstance to be found true. Instead, accepting the defendant's argument that a special status was required, this court in Dancer held that such a status was demonstrated on the facts of that case. A defendant may often need to establish a relationship with the victim to create a position of trust. As a result, published opinions involving this aggravating circumstance typically note the status the defendant had in relation to the victim that placed the defendant in a position of trust or confidence. (See, e.g., People v. DeHoyos (2013) 57 Cal.4th 79, 155 (DeHoyos) [defendant approached a child walking home alone from school and represented himself to be a teacher, "prey[ing] on her naivete and natural deference to a teacher's position of authority"]; People v. Sperling (2017) 12 Cal.App.5th 1094, 1103 [professional masseur]; People v. Baughman (2008) 166 Cal.App.4th 1316, 1323 [single parent of victim]; People v. Dominguez (2008) 166 Cal.App.4th 858, 869 [employee with unsupervised access to victim's car]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1263 (Burbine) ["quasi-paternal relationship"]; People v. Franklin (1994) 25 Cal.App.4th 328, 331, 337338 (Franklin) [adult caring for young victim]; People v. Clark (1992) 12 Cal.App.4th 663, 666 (Clark) [stepfather entrusted with victim's care]; People v. Jones (1992) 10 Cal.App.4th 1566, 1577 (Jones) [biological father with physical custody of victim]; People v. Simon (1983) 144 Cal.App.3d 761, 764 (Simon) [treasurer of soccer league].) However, none of these decisions states that a special relationship between the defendant and the victim is necessary to prove the aggravating circumstance that the defendant took advantage of a position of trust to commit the offenses. The majority of these decisions discuss the relationship between the defendant and the victim in the context of analyzing whether the rule against making dual use of facts to both prove both an aggravating circumstance and the underlying offense was violated, without stating that proof of a special relationship is required for the aggravating circumstance. (See DeHoyos, supra, at p. 155 [rejecting claim that kidnapping and aggravating circumstances involved the same facts, stating that "the specific nature of the ruse used by defendant also went beyond the elements of the offense"]; Burbine, supra, at pp. 1262-1263; Franklin, supra, at pp. 337-338; Clark, supra, at p. 666; Jones, supra, at pp. 1576-1577; Simon, supra, at p. 766.) Defendant does not argue that the dual use rule is implicated in the instant case.
Under this rule, "the court is not permitted to use a reason to impose a greater term if that reason also is either (1) the same as an enhancement that will be imposed, or (2) an element of the crime." (Advisory Com. com., Cal. Rules of Court, rule 4.420.)
"An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.' [Citations.] Aggravating circumstances include those listed in the sentencing rules, as well as any facts 'statutorily declared to be circumstances in aggravation' [citation] and any other facts that are 'reasonably related to the decision being made.' [Citation.]" (People v. Black (2007) 41 Cal.4th 799, 817, superseded by statute on other grounds as stated in Lynch, supra, 16 Cal.5th at p. 756.) Here, the jury could reasonably conclude that defendant used his status as owner of a business registered with the Bureau of Automotive Repair to further the fraudulent lien sale, and that this fact made his conduct "distinctively worse than it would otherwise have been," regardless of whether he had any relationship with Mohagerani. (People v. Zamarron (1994) 30 Cal.App.4th 865, 872.) Thus, sufficient evidence supports the true finding concerning this aggravating circumstance.
CALCRIM No. 3233 instructs concerning this aggravating circumstance as follows: "To prove this allegation, the People must prove that: [¶] 1. (Prior to/During) the commission of the crime, the defendant (had/developed) a relationship with __ <insert name of victim or other person>; [¶] 2. This relationship allowed the defendant to occupy a position of trust or caused __ <insert name of victim or other person> to have confidence in the defendant; [¶] AND [¶] 3. The defendant took advantage of this position of trust or confidence to commit the crime." This instruction was not used in defendant's case. Instead, defendant's jury was instructed as follows: "To prove these allegations, the People must prove that: [¶] 1. The defendant took advantage of a position of trust to commit the offense. [¶] The words in this instruction are to be given their ordinary everyday meaning." Defendant did not object to this instruction at trial, he raises no issue concerning the instruction on appeal, and he cites to no authority that states that CALCRIM No. 3233 is required to be given as worded. Because we conclude that the prosecution was not required to prove a relationship between the defendant and the victim, we find no error in the trial court's instruction concerning this aggravating circumstance.
Moreover, defendant's argument rests on his assertion that Mohagerani was the victim of defendant's offenses. However, the prosecution did not specify a victim when it amended the information to include this aggravating circumstance, and the information did not list a specific victim in the charged offenses. While the evidence demonstrated that Mohagerani suffered a financial loss from Ricardo's sale of the truck to him, it was defendant's relationship with the state that enabled defendant to commit his offenses.
The prosecution's theory was that defendant used his status as proprietor of a registered automotive repair facility in an effort to effect a "title wash" that would benefit Ricardo by depriving Chrysler Capital-the legal owner of the title to the truck-of its interest in the truck. Thus, in count 2, the information alleged that defendant's overt acts in furtherance of the conspiracy were that he "[c]reated false lien sale documentation that was provided to Hollister DMV, and returned vehicle to registered owner after alleged lien sale documentation was completed." By creating false lien sale documentation for a lien sale for a vehicle purportedly worth $4,000 or less, defendant attempted to provide clear title to Ricardo without going through the procedures required for a lien sale of a vehicle valued at more than $4,000. In so doing, defendant could utilize more expeditious procedures to notify any potential interested party of the lien sale, while also depriving the state of sales and use tax revenue had the vehicle been sold at fair value. Defendant's role in the conspiracy was to carry out the purported lien sale of the truck to Ricardo, not to then sell the truck to another person. The jury could reasonably conclude based on the record that defendant used his registration with the Bureau of Automotive Repair-his relationship to the state-to commit the offenses.
As noted above, CALCRIM No. 3233 states that the prosecution must prove that the defendant developed a relationship with the victim "or other person." Even assuming that a relationship between the defendant or other person is required for this aggravating circumstance, defendant developed a relationship with the state-an "other person"-by registering his business with the Bureau of Automotive Repair.
We conclude that sufficient evidence supports the jury's finding that defendant took advantage of a position of trust to commit the offenses. Therefore, we need not address the Attorney General's argument that defendant was not prejudiced by any error in the jury's true finding on this aggravating circumstance. Because the Attorney General argued a lack of prejudice regarding this issue, we requested supplemental briefing concerning the impact, if any, of the California Supreme Court's recent decision in Lynch, in which the court considered the standard for assessing prejudice regarding a sentence imposed before the effective date of recent amendments to section 1170, subdivision (b). (Lynch, supra, 16 Cal.5th at p. 746.) Our Supreme Court stated: "When the trial court actually relies on improperly proven aggravating facts to 'justify' an upper term sentence, a Sixth Amendment violation occurs and Chapman [v. California (1967) 386 U.S. 18] must be satisfied. That is to say the reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. This prejudice inquiry does not allow us to uphold the trial court's imposition of an upper term sentence based on some subset of aggravating facts." (Id. at p. 761.) Here, defendant's sentencing hearing took place after the effective date of the amendments to section 1170, subdivision (b). Both aggravating circumstances listed in the amended information were found true by the jury beyond a reasonable doubt, and we have rejected defendant's claim that insufficient evidence supported the jury's true finding concerning the second aggravating circumstance that defendant took advantage of a position of trust to commit the offenses. Thus, we need not analyze the effect of Lynch on the Attorney General's argument that defendant was not prejudiced by any error.
Defendant argues in supplemental briefing that the trial court improperly relied on other aggravating circumstances not properly proven under amended section 1170, subdivision (b). However, the trial court specified at sentencing that the two aggravating circumstances listed in the information and defendant's criminal history proven by a certified record of conviction, standing alone, justified imposition of the upper term.
In announcing the sentence, the trial court stated: "And the reason for the upper term is because of the manner in which the crime was committed. It indicates a level of planning and sophistication. There's a great monetary value involved, the value of a new or newer vehicle. And Mr. Hooks was an active participant in the crime. [¶] His prior performance on probation was unsatisfactory. He's had two violations in Santa Clara case C1516557. Also, this is, by my count, his 15th felony conviction. And he does have a lengthy criminal history." The trial court then noted the two aggravating circumstances in the amended information that the jury found true, that the manner in which the crime was committed indicated professionalism, planning, or sophistication and that defendant took advantage of a position of trust to commit the offenses. After the trial court imposed the sentence, the prosecutor asked the trial court: "the circumstances in aggravation in terms of that were found true by the jury May 8th, as well as the ones supported by his prior record, the ones in the certified rap sheet, is that sufficient that the Court alone is relying upon those to aggravate the sentence, or is the Court also relying upon the great monetary value?" The prosecutor noted that the aggravating circumstance that the crime involved great monetary value was not found true by the jury. After some clarifying discussion, the prosecutor asked: "Just so -- so the Court is saying even -- the two that are found true by the jury were sufficient for the Court to aggravate the sentence?" The trial court replied: "Correct."
Because the trial court did not rely on any aggravating factors that were not found true by the jury beyond a reasonable doubt or that were not based on a certified record of conviction in imposing the upper term, defendant does not establish that any violation of amended section 1170, subdivision (b) occurred. Thus, defendant's prejudice argument based on Lynch fails.
B. Ineffective Assistance of Counsel
Defendant next contends that he received ineffective assistance of counsel when his trial counsel failed to object to the trial court's imposition of certain conditions regarding defendant's mandatory supervision. Defendant asserts: "Without objection, the trial court imposed several conditions of mandatory supervision related to alcohol and drug possession, use and testing; staying away from school campuses; and refraining from possession of deadly or dangerous weapons. None of the supervision conditions were related to the offenses for which [defendant] was convicted, nor were they related to future criminality. Additionally, all of the challenged conditions regulated conduct that was otherwise legal, such that defense counsel should have objected to their imposition. There is no reasonable or tactical explanation for defense counsel's failure to object and [defendant] was prejudiced by counsel's failure because it is reasonably probable that, had counsel objected, the trial court would not have imposed the unreasonable conditions.
Accordingly, the challenged conditions should be ordered stricken." The Attorney General argues in response that defendant has not established that his counsel performed deficiently because there could be a rational tactical explanation for counsel's failure to object, and that defendant was not prejudiced by any such deficient performance. "The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.] A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ....' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted (Lent).) Failure to timely challenge a probation condition on the grounds listed above forfeits the claim on appeal. (People v. Moran (2016) 1 Cal.5th 398, 404, fn. 7; People v. Welch (1993) 5 Cal.4th 228, 237.)
The parties both cite Lent as providing the substantive test for when conditions of mandatory supervision are invalid. Defendant frames this issue as one of ineffective assistance of counsel; he does not argue that this court should avoid forfeiture and review the conditions of his mandatory supervision under the Lent test Therefore, we need not analyze whether and to what extent Lent-which dealt with probation conditions- provides the applicable standard for analyzing the validity of conditions of mandatory supervision (See People v Bryant (2021) 11 Cal5th 976, 993-994 (Cantil-Sakauye, CJ, concurring) [recognizing the distinction between probation and mandatory supervision and stating that "[t]he case before us does not require that we articulate how these distinctions between probation and mandatory supervision may impact the propriety of certain supervision conditions under Lent or from a constitutional perspective ...."].)
"In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.' [Citations.] Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 745-746 (Ledesma).)
Defendant has not established that he received ineffective assistance of counsel based on his trial counsel's failure to object to the mandatory supervision conditions. Trial counsel could have had a rational tactical purpose for not objecting to the conditions. Specifically, counsel may have believed that not objecting to these conditions presented the best chance to obtain mandatory supervised release for defendant. The record demonstrates that minimizing time in confinement was an important consideration for defendant. At sentencing, defendant's counsel told the court that defendant "is prepared to do community service, electronic monitoring or anything in the alternative to reduce the amount of actual incarceration time." Even if trial counsel believed that conditions such as abstaining from drug and alcohol use, not possessing deadly or dangerous weapons, or staying away from school campuses were objectionable, counsel might have believed that any cost to defendant of obeying these conditions was not worth the risk of not obtaining a period of mandatory supervision. The record does not affirmatively disclose that" 'there simply could be no satisfactory explanation'" for counsel's lack of objection to the mandatory supervision conditions. (Ledesma, supra, 39 Cal.4th at p. 746.) Accordingly, defendant has not established that he received ineffective assistance of counsel.
A letter from a long-time neighbor of defendant included in the probation officer's presentencing report stated, "I have never known [defendant] to drink alcohol or use any kind of drugs." The probation officer's report also relayed that defendant reported he "first and last consumed alcohol when he was ten years old" and that defendant reported he has never used any controlled substances or abused prescription medications.
C. Application of Section 654
Third and finally, defendant asserts that the trial court erred in not staying the sentence for count 2 under section 654. Defendant argues: "The trial court erroneously subjected [defendant] to multiple punishments for grand theft (count I) and conspiracy to commit grand theft (count II). Since the offenses involved a single act of completing false lien documents to obtain title to the 2017 Ram truck-as opposed to prior, different, or subsequent conduct-the trial court should have imposed and stayed sentence on count II, conspiracy to commit grand theft, pursuant to section 654. Although defense counsel did not object at the time of sentencing, the issue is not forfeited because the resulting sentence is unauthorized. As such, the sentence on count II should be modified to reflect an imposed and stayed sentence." Thus, defendant argues that "the matter should be remanded or the judgment modified to reflect an imposed and stayed sentence." The Attorney General agrees that section 654 applies to defendant's case and does not argue that this issue was forfeited.
Section 654, subdivision (a) states in relevant part: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." "The statutory purpose underlying section 654 'is to ensure that a defendant's punishment will be commensurate with his [or her] culpability.' [Citation.] To that end, the statute prohibits courts from imposing multiple punishment for the same act or omission . . . ." (People v. Kelly (2018) 28 Cal.App.5th 886, 904.) "If a single action or course of conduct by a defendant violates multiple laws, 'the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, [but] the trial court may impose sentence for only one offense . . . .' [Citation.]" (People v. Sek (2022) 74 Cal.App.5th 657, 673 (Sek).) Under section 654, a defendant may not be punished for both an underlying crime and conspiracy to commit the crime where there is "no showing that the object of the conspiracy was any broader than commission of the underlying crimes. [Citations.]" (People v. Lewis (2008) 43 Cal.4th 415, 539, overruled in part on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920.)
The forfeiture doctrine does not apply to claims of error under section 654. (Scott, supra, 9 Cal.4th at p. 354, fn. 17 ["It is well settled . . . that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654. [Citations.]"]; People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3 ["[T]he waiver doctrine does not apply to questions involving the applicability of section 654"].)
We agree with the parties that section 654 applies in this matter. Both counts involved the same acts by defendant. Defendant was charged with both an underlying crime and conspiracy to commit the crime, and no showing was made at trial that the object of the conspiracy was any broader than commission of the underlying crime. At sentencing, the prosecutor asserted that section 654 applied to defendant's case, stating: "We believe that his maximum . . . is three years concurrent, which we believe Counts 1 and 2 are 654 of each other, pursuant to the same plan or scheme, if you will." Defense counsel agreed with the prosecutor that section 654 applied and thus defendant should face a maximum three-year sentence. The trial court did not specifically state whether section 654 applied, but the trial court did state that it was "going to essentially adopt what [the prosecutor is] asking for" and accordingly sentenced defendant to an aggregate three-year term.
The imposition of concurrent sentences for counts 1 and 2 does not satisfy section 654's requirement to" 'impose sentence for only one offense . . . .' [Citation.]" (Sek, supra, 74 Cal.App.5th at p. 673.) "Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 592.) "Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment. [Citations.]" (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.)" 'It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because [under such a sentence] the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' [Citations.]" (People v. Duff (2010) 50 Cal.4th 787, 796.)
"When a court determines that a conviction falls within the meaning of Penal Code section 654, it is necessary to impose sentence and to stay the execution of the duplicative sentence. [Citations.] The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant's service of the portion of the sentence not stayed. [Citations.]" (People v. Mani (2022) 74 Cal.App.5th 343, 380.) "Accordingly, after determining which sentence to execute, courts must impose a sentence on the other count to which Penal Code section 654 applies and then stay execution of that sentence pursuant to Penal Code section 654, subdivision (a), the stay to become permanent upon defendant's service of the portion of the sentence not stayed. [Citations.]" (Ibid.)
Here, the trial court erred in ordering the sentence for count 2 to run concurrently with the sentence for count 1 instead of imposing and staying the sentence for count 2. We therefore agree with defendant that the judgment should be modified to reflect an imposed and stayed sentence for count 2, the sentence for which the trial court imposed a concurrent sentence. On appeal, defendant initially argued only that the judgment should be modified to stay the sentence for count 2. Later, he asserted that "the matter should be remanded or the judgment modified to reflect an imposed and stayed sentence." To the extent that defendant argues that remand for resentencing is appropriate, we conclude that remand for resentencing would be a "futile act" because the trial court imposed an upper term three-year sentence for both count 1 and count 2. (People v. Allison (2019) 39 Cal.App.5th 688, 705.) We will correct the error by ordering modification of the judgment to impose and stay the sentence for count 2 pursuant to section 654.
IV. DISPOSITION
The judgment is ordered modified to reflect that the sentence for count 2 is imposed and that execution of the sentence for count 2 is stayed pursuant to Penal Code section 654. As so modified, the judgment is affirmed.
WE CONCUR: DANNER, J. WILSON, J.