Opinion
A149749
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. DERRICK KENT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51518646)
A jury convicted Derrick Kent of multiple offenses, including driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), and found that the value of the vehicle was more than $950, rendering his offense a felony. Kent contends the Vehicle Code section 10851 conviction (and related penalty under Penal Code section 666.5) must be reversed because (1) the victim's testimony about the Kelley Blue Book value of her vehicle constituted inadmissible hearsay, and there was no other evidence that her vehicle's value exceeded $950; (2) the court failed to instruct the jury sua sponte that it would have to find the vehicle was worth over $950 for the crime to be a felony; (3) the verdict form was erroneous; and (4) defense counsel rendered ineffective assistance if any of these issues were forfeited by a failure to object. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information filed on June 17, 2016, charged Kent with first degree burglary of an inhabited dwelling with a person present (Pen. Code, § 459), fleeing a pursuing peace officer's car while driving recklessly (Veh. Code, § 2800.2), fleeing a pursuing peace officer's car while driving against traffic (Veh. Code, § 2800.4), felony driving or taking a vehicle - the victim's 2005 Ford Focus - without consent (Veh. Code, § 10851, subd. (a)), felony possession of ammunition as a prohibited person (Pen. Code, § 30305, subd. (a)(1)), and hit and run driving resulting in property damage (Veh. Code, § 20002, subd. (a)). The information further alleged that Kent was previously convicted of driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5), he had a prior conviction for a serious or violent felony (Pen. Code, § 667, subds. (a)(1), (d), (e)), and he had previously served three prison terms (Pen. Code, § 667.5, subds. (a), (b)).
The matter proceeded to a jury trial. On June 29, 2016, Kent entered a no contest plea to the charge of possessing ammunition as a prohibited person. Evidence was presented at trial from June 29 to July 1, 2016.
A. Evidence at Trial
Around 7:30 p.m. on June 7, 2015, Officer Kyle Breckenridge of the Pinole Police Department responded to a call about a suspicious gray SUV at an intersection in Pinole. In full police uniform, Breckenridge approached an SUV parked at that location. He identified the driver as Kent and spoke to the passenger in the front seat. After running the license plate number through dispatch, Breckenridge asked the passenger for his identification, but Kent started the SUV and drove off, accelerating quickly.
Officer Breckenridge followed the SUV and saw it pass through an intersection without stopping at a stop sign. He activated the lights and siren of his marked police car to pull Kent over, but Kent sped away.
Kent's SUV skidded, moved from the westbound to the eastbound lanes of the road, drove against oncoming traffic for about a mile, and reached about 80 miles per hour in a 45 miles per hour zone. A car swerved to avoid hitting Kent's SUV. Kent then drove approximately 60 miles per hour in a 40 miles per hour zone, pulled into a parking lot, and fled on foot.
Kent ran across the street and jumped over a fence bordering a mobile home park. He grabbed his waistband, indicating to Officer Breckenridge that he might be carrying a gun. Breckenridge gave Kent's description to dispatch and followed Kent on foot.
Kent fled into the home of 84-year-old Dorothy Jackson. Her granddaughter, Michelle Jackson (Jackson), encountered him inside a bedroom. Grabbing some pruning shears, Jackson told him to leave. Kent said he needed to hide, and Jackson ran out of the house and called 911. Kent took car keys from a wall hook and used them to drive off with Jackson's red Ford Focus.
Officer Breckenridge heard on the police radio that a resident "had possibly just had their vehicle stolen" and saw a red sedan approaching. He recognized Kent as the driver, drew his gun, and told Kent to show his hands. Kent reversed the car, pulled into a carport, and fled on foot.
Other officers apprehended Kent, who spit a bag of methamphetamine out of his mouth. A police dog alerted to fresh human odor on a bush near where Kent had been running; an officer found a high-capacity handgun magazine containing about 26 rounds of ammunition in the bush.
Police returned Jackson's Ford Focus and car keys to her that night. Before trial, the prosecutor asked her to look up the value of her car on "[Kelley] Blue Book," and at trial she testified that she was given the car in 2008, it ran well and had no significant damage, and it was valued by Kelley Blue Book at approximately $5,200 in June 2015.
B. Verdict and Sentence
After the close of evidence, the court granted the prosecution's motion to dismiss the hit and run charge. The jury thereafter acquitted Kent of first degree burglary and found him guilty of fleeing a pursuing peace officer's car while driving recklessly (Veh. Code, § 2800.2, subd. (a)) and while driving against traffic (Veh. Code, § 2800.4), and driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)). It also found true the allegation that the victim's vehicle was worth more than $950.
The court found the prior conviction and prison term allegations to be true and sentenced Kent to an aggregate term of 11 years, 8 months in state prison. This appeal followed.
II. DISCUSSION
A. Admission of Victim's Testimony About the Value of the Car
The prosecutor referred to Kent's Vehicle Code section 10851 (section 10851) offense as "vehicle theft," and the parties agree that, pursuant to Penal Code section 490.2, a felony conviction under section 10851 requires that the vehicle be worth more than $950. (People v. Page (2017) 3 Cal.5th 1175, 1187; In re D.N. (2018) 19 Cal.App.5th 898, 901.)
Kent contends the court erred in admitting Jackson's testimony about the Kelley Blue Book value of her car, claiming the statement was inadmissible hearsay. He urges that there was no other evidence of the car's value, so his conviction (and the associated section 666.5 penalty) must be reversed. We conclude the challenge was forfeited by counsel's failure to object on hearsay grounds, and counsel's failure to object did not constitute ineffective assistance.
1. Jackson's Testimony
Jackson testified about the value of her car as follows. "Q. Do you have an idea about how much [your Ford Focus] was worth in June of 2015? [¶] A. Around 5,200. [¶] Q. How did you come up [with] that number? [¶] A. I went on [Kelley] Blue Book. [¶] Q. Was that after I asked you to do that? [¶] A. Yes. [¶] Q. In getting that estimate, did you have to put in any information about your car, the year, the make, the model, the mileage, things like that? [¶] A. Yes. [¶] Q. When you first put in that information into [Kelley] Blue Book, were you putting information as accurately as possible? [¶] A. I tried to, yes. [¶] Q. And the information it gave you was the value was about $5,200? [¶] [DEFENSE COUNSEL]: I'm going [to] make a foundation objection concerning [Kelley] Blue Book. [¶] THE COURT: Overruled. [¶] BY [PROSECUTOR]: [¶] Q. Let me also just ask this: Did you at some point in the past buy that vehicle? [¶] A. No. It was a gift. [¶] Q. When did you receive that as a gift? [¶] A. In 2008, I think. [¶] Q. As of June of 2015, how would you describe sort of the condition of the vehicle? [¶] A. It runs pretty good. [¶] THE COURT: Do you still have it, or did you sell it? [¶] THE WITNESS: I still have it. [¶] BY [PROSECUTOR]: [¶] Q. Was there any significant damage to the vehicle? [¶] A. No." (Italics added.)
2. Forfeiture
Trial counsel must object to the admission of hearsay to preserve the issue for appeal. (People v. Stevens (2015) 62 Cal.4th 325, 333; Evid. Code, § 353, subd. (a).) Although Kent contends on appeal that the Kelley Blue Book's statement of value was inadmissible hearsay, he did not object on that ground at trial. Defense counsel's statement that he was making a " 'foundation objection concerning Kelly Blue Book' " was insufficient.
Evidence Code section 353 requires an objection "so stated as to make clear the specific ground of the objection." (Italics added.) The objection must "fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).)
An objection on the ground of "foundation" could be targeting any one of a variety of evidentiary rules, including authentication (Evid. Code, § 1400), relevance (Evid. Code, §§ 210, 350), personal knowledge (Evid. Code, § 702), expert witness qualification (Evid. Code, § 720), and admissibility of lay and expert witness opinion (Evid. Code, §§ 800, 801). (See also Evid. Code, §§ 403, 405 [preliminary facts].) Using the word "foundation" in the objection did not fairly inform the court and prosecutor that he was objecting on the ground of hearsay. (See People v. Horn (1960) 187 Cal.App.2d 68, 76-78 [hearsay claim forfeited because defendant objected only that the evidence was incompetent, irrelevant and immaterial].)
Kent contends the hearsay nature of the Kelley Blue Book statement was obvious, so the court and prosecutor must have known that defense counsel meant "hearsay" when he said "foundation." We disagree. Even if the out-of-court statement was plainly hearsay, that does not mean counsel believed it was inadmissible hearsay, and it certainly does not mean he clearly objected on that particular ground, as opposed to others. To the contrary, his statement that he was "going [to] make a foundation objection concerning [Kelley] Blue Book," in response to a question asking whether Kelley Blue Book indicated a value of about $5,200, more likely communicated an objection that (1) Kelley Blue Book had not been established as a reliable basis for valuing cars; (2) Kelley Blue Book had not been established as a reliable basis for valuing Thompson's car in particular; or (3) the prosecutor had not established that Jackson entered the correct information into the Kelley Blue Book website to render an accurate value. (Indeed, elsewhere during the trial, defense counsel specifically objected to other matters as "hearsay," suggesting he used the word "hearsay" when he wanted to make a hearsay objection.)
Kent nonetheless argues that his counsel's "foundation" objection preserved a hearsay challenge because our Supreme Court has stated that the proponent of hearsay evidence must lay a proper "foundation" for a hearsay exception. (Citing People v. Livaditis (1992) 2 Cal.4th 759, 778.) His reliance on Livaditis is misplaced. The court there observed that, "if a hearsay objection is properly made, the burden shifts to the party offering the hearsay to lay a proper foundation for it's admissibility under an exception to the hearsay rule." (Ibid. Italics added.) Here, no hearsay objection was properly made. By no means did Livaditis hold that an objection on the ground of "foundation" is sufficient to preserve a challenge based on hearsay.
The other cases on which Kent relies are distinguishable as well, since they all involved circumstances that made clear the specific objection counsel was asserting. (People v. Frank (1985) 38 Cal.3d 711, 737-738 [objection preserved where defendant's written points and authorities and prosecutor's response "squarely presented" the issue to the trial court]; People v. Williams (1988) 44 Cal.3d 883, 906-907 [relevance objection preserved an appellate challenge under Evid. Code § 1101, because it was clear from opening statement that the evidence would show the commission of an uncharged crime]; People v. Stamps (2016) 3 Cal.App.5th 988, 993 [hearsay challenge was preserved because "counsel did object repeatedly on grounds of hearsay and lack of foundation"]; People v. Carillo (2004) 119 Cal.App.4th 94, 101 [undue prejudice challenge preserved where "defense counsel's objections and colloquy with the court made it clear he believed the prosecutor's questions in this area were irrelevant and improper"]; see also People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100, fn. 5 [addressing issue under Evid. Code § 352, even though defendant objected on other grounds]; Partida, supra, 37 Cal.4th at pp. 435-436 [proper Evid. Code § 352 objection preserved a challenge to the evidence on the additional ground of due process, but only to the extent of the analysis required by Evid. Code § 352].)
Finally, Kent argues that defense counsel was "caught off guard" because the victim referred to Kelley Blue Book suddenly at trial, and it was unclear at that time whether the $950 requirement for a felony applied to section 10851. The record does not reflect that defense counsel was surprised by the mention of the Kelley Blue Book. Moreover, neither his purported surprise nor any doubt about the significance of the testimony would have precluded him from using the word "hearsay" if he wanted to object to a statement Kent now claims was so obviously hearsay.
Kent sings a different tune when trying to prove his attorney was ineffective for failing to object, claiming "[i]t was well known at the time of trial that there was a viable argument that Proposition 47 applied to vehicle thefts under section 10851" and the "prosecutor specifically informed counsel and the trial court of this prior to trial and stated his intention to prove the value of the car at trial so that he would obtain a felony conviction."
Kent forfeited his challenge to Jackson's testimony as inadmissible hearsay.
3. Ineffective Assistance
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) prejudice flowing from counsel's performance or lack thereof. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) To establish prejudice, the defendant must prove it is reasonably likely the result of his trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693, 696.)
Kent's defense counsel may have had a reasonable tactical motive not to object on hearsay grounds because he believed a hearsay exception applied. But even if Kent's counsel did not act competently in failing to object, there is no reasonable likelihood the result of the trial would have been different if counsel had made a hearsay objection.
Evidence Code section 1340 provides that "a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business." (Evid. Code, § 1340; People v. Franzen (2012) 210 Cal.App.4th 1193, 1206 (Franzen).) There is no indication from the record that, if Kent had objected on hearsay grounds, the prosecutor would have been unable to establish this hearsay exception.
Jackson testified that she inputted her car's information onto the Kelley Blue Book website, which then stated a value for her car. A website of this nature may be considered a "compilation." (See People v. Mooring (2017) 15 Cal.App.5th 928, 937-940 [website was a compilation under Evid. Code § 1340 because it collected information from manufacturers and a government agency and presented it in a searchable database].) It may also qualify as "published." (Ibid.; Franzen, supra, 210 Cal.App.4th at pp. 1209 [published compilation consists of "an organized, edited presentation of a finite quantity of information that, if not printed on paper, has been recorded and circulated in some fixed form analogous to printing."].) And the court could have taken judicial notice, or the prosecutor could have produced evidence, that the Kelley Blue Book is "generally used and relied upon in the course of a business" (Evid. Code, § 1340). (See Martinez v. Enterprise Rent-A-Car Co. (2004) 119 Cal.App.4th 46, 56 [Kelley Blue Book is a "widely accepted source" for objectively establishing the retail value of cars]; see also Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 247 [insurer supported assertions of vehicle's value by reference to Kelley Blue Book]; People v. Schmeck (2005) 37 Cal.4th 240, 249 [recreational vehicle center informed caller of the Kelley Blue Book value and that he could make the deal that day]; In re Alexander A. (2011) 192 Cal.App.4th 847, 851 [victim at a restitution hearing relied on Kelley Blue Book for the vehicle's value]; People v. Jones (2010) 187 Cal.App.4th 418, 420 [evidence at a restitution hearing that an insurer would pay the insured the vehicle's Kelley Blue Book value].)
Kent argues that taking judicial notice of the car's value would violate his right to a jury trial as to a fact that could increase his sentence. We do not hold that the court could have taken judicial notice of the car's value, but of the commonly known proposition, not reasonably subject to dispute, that the Kelley Blue Book has been generally used and relied upon for vehicle valuation, as part of the evidentiary foundation for admission of the stated value under Evidence Code section 1340. (See Evid. Code, § 452, subds. (g), (h).)
In short, it would not have been an abuse of discretion for the court to conclude that the value stated by the Kelley Blue Book website was admissible under Evidence Code section 1340. Kent therefore fails to establish a reasonable probability that the court would have sustained a hearsay objection, or that Kent would have obtained a better outcome in the case, if his attorney had made the objection.
B. Instructions and Verdict Form
Kent contends the court should have instructed sua sponte with CALCRIM No. 1801 (Grand and Petty Theft) and erred by including the car's model year in the verdict form. Neither argument has merit.
1. Background
The court instructed the jury with the standard instruction regarding the elements of a section 10851 violation (CALCRIM No. 1820). As relevant here, the instruction read: "The defendant is charged in Count Four with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took or drove someone else's vehicle without the owner's consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time."
The court also instructed the jury with CALCRIM No. 1860, regarding Jackson's testimony of her car's value: "A witness gave her opinion of the value of the property she allegedly owned. In considering the opinion, you may but are not required to accept it as true or correct. Consider the reasons the witness gave for any opinion, the facts or information on which she relied in forming that opinion, and whether the information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable or unreasonable. You may give the opinion whatever weight, if any, you believe it deserves."
On the verdict form, the jury was asked as to count four whether Kent was guilty of "DRIVING OR TAKING A VEHICLE WITHOUT CONSENT, a violation of Vehicle Code Section 10851, a Felony, on or about June 7, 2015, as set forth in Count Four of the Information." It also asked, in the event the jury found Kent guilty on that count, to make a "Special finding" whether "the value of the 2005 Ford Focus belonging to Michelle Jackson is worth more than $950."
2. Sufficiency of the Instructions
Kent argues that Proposition 47 and Penal Code section 490.2 added the $950 value requirement for a felony conviction under section 10851, so the trial court had a sua sponte duty to instruct the jury that it needed to find, beyond a reasonable doubt, that the value of Jackson's car exceeded $950 before convicting Kent of the offense. Further, he argues, the jury had to be instructed as to the definition of fair market value. Kent therefore contends the court should have instructed the jury with a modified version of CALCRIM No. 1801 (Grand and Petty Theft), as follows: "If you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft. [¶] Theft of an automobile is grand theft if the value of the property is more than $950. [¶] The value of property is the fair market value of the property. [¶] Fair market value is the highest price the property would reasonably have been sold for in the open market at the time of, and in the general location of, the theft. [¶] The People have the burden of proving beyond a reasonable doubt that the theft was grand theft rather than [petty theft]. If the People have not met this burden, you must find the defendant not guilty of grand theft." (See CALCRIM Nos. 1801, 3220.) Kent contends the court should have also instructed the jury that " '[t]heft of an automobile is petty theft if the value of the property is not more than $950.' " His arguments are meritless.
In the trial court, Kent did not request the instruction that he now proposes, and respondent points out that " '[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Jones (2013) 57 Cal.4th 899, 969.) Kent contends an objection is not required to preserve a claim that the instructions omitted an essential element of the charge. (People v. Mil (2012) 53 Cal.4th 400, 409; Pen. Code, § 1259; see also People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Further, he argues, the court had a sua sponte duty to instruct because the car's value was a fact that increased his permissible punishment for the crime. (Citing Apprendi v. New Jersey (2000) 530 U.S. 466, 494-495; People v. Betts (2005) 34 Cal.4th 1039, 1054.) We will proceed to the merits.
When considering a claim of an erroneous or inadequate instruction, we determine whether there is a reasonable likelihood, in light of the instructions as a whole, that the jury construed or applied the instruction in an objectionable manner. (People v. Osband (1996) 13 Cal.4th 622, 685-686; People v. Musselwhite (1998) 17 Cal.4th 1216, 1249.)
Here, there is no reasonable likelihood the jury misconstrued or misapplied the instructions. The verdict form required the jury to decide whether Kent was guilty of vehicle theft and, if so, whether the value of the vehicle exceeded $950. The court accurately instructed the jury on the elements of vehicle theft under section 10851, informed the jury how to consider the evidence of the car's value and give it appropriate weight, and instructed the jury that whenever the court said the People had to prove something, it meant the People must "prove it beyond a reasonable doubt unless I specifically tell you otherwise." (See CALCRIM No. 220.) In their totality, the instructions equipped the jury to determine whether the prosecution had proved the violation, as well as the valuation that rendered the offense a felony.
Moreover, even if the court had an obligation to instruct the jury explicitly that it had to find the car's value exceeded $950, the failure to do so was harmless. It was obvious from the verdict form - and the instruction to consider Jackson's valuation testimony - that the jury was supposed to decide whether the car's value exceeded $950, and indeed, the jury made that finding. While the court did not specifically say the finding had to be made beyond a reasonable doubt, the court did instruct the jury that anything the People must prove had to be proven beyond a reasonable doubt, and the prosecutor urged the jury in closing argument to make the finding "beyond a reasonable doubt." Furthermore, the defense did not even dispute the value of the car at trial: the only evidence of the car's value was Jackson's testimony, and defense counsel neither cross-examined Jackson about the car's value nor claimed the prosecutor had not proven the valuation in closing argument.
Kent now argues that the jury could have decided the car was worth less than $950 because a Ford Focus is a "low value car, and it had been given to the victim for free in 2008, which was 7 years prior [to] its theft in 2015." There is no evidence in the record that a Ford Focus is a "low value car," and the fact that Jackson received it as a gift years previously does not reasonably show its value was $950 or less. Moreover, the question is not whether the jury could have reached a different conclusion, but whether there is a reasonable likelihood it would have reached a different conclusion if only it had been told explicitly, rather than implicitly, to make the valuation finding. We find no such likelihood.
Kent argues that the court's failure to instruct the jury of its duty to assess whether the value exceeded $950 was erroneous because the jury was not equipped with the information it needed to find as to count 4 that a "felony" occurred. (Citing People v. Magee (2003) 107 Cal.App.4th 188, 193.) He is incorrect. First, the inclusion of the word "felony" in the verdict form was ostensibly a vestige of the charging allegation in the information, not something the jury had to "find." Second, since the jury found the car's value was over $950, it found the fact requisite for a felony. Third, the case on which Kent relies shows that his argument is unavailing. In Magee, the defendant argued that his conviction for accessory to robbery had to be reversed, because the court did not instruct the jury on each element of robbery. The appellate court decided that the robbery instruction should have been given because the jury could not have found him liable for accessory to robbery unless it determined a robbery occurred, but the error was harmless because there was no dispute a robbery took place. (Id. at p. 195.) Here, not only did the court instruct on the elements of the section 10851 offense and how to consider the valuation evidence, Kent did not dispute that the vehicle had a value over $950, rendering any instructional error harmless.
Kent next argues that the court should not have instructed with CALCRIM No. 1860, because that instruction said "[a] witness gave her opinion of the value of the property she allegedly owned," but there was no such opinion given. To the contrary, Jackson did give her opinion of the value of the car. When the prosecutor asked, "Do you have an idea about how much [your car] was worth in June of 2015," she answered, "Around 5,200."
Kent says the assertion that Jackson gave an "opinion" as to her car's value "flies directly in the face of respondent's claim" that the statement on Kelley Blue Book's website was a published compilation under Evidence Code section 1340, since that section requires "a statement, other than opinion." But "opinion" in CALCRIM No. 1860 includes testimony of the fact of a car's value. The Kelley Blue Book statement was an assertion of fact, which Jackson adopted as her opinion.
In his reply brief, Kent argues that the use notes to CALCRIM No. 1801 - pertaining to grand and petty theft - provide that "the court has a sua sponte duty to give an instruction if grand theft has been charged." However, Kent was not charged with grand theft (Pen. Code, § 487). And while "to the extent vehicle theft is punished as a felony under section 10851, it is, in effect, a form of grand, rather than petty, theft" (Page, supra, 3 Cal.5th at p. 1186), that does not mean that a charge of section 10851 requires instruction with CALCRIM No. 1801. Kent fails to establish instructional error.
3. Special Finding
The special finding on the verdict form asked the jury whether "the value of the 2005 Ford Focus belonging to Michelle Jackson is worth more than $950." (Italics added.) Kent complains that reference to "2005" was improper because the model year was not in evidence. (Again, inclusion of "2005" on the verdict form was apparently a vestige of the charging allegation in the information.) Kent claims the error confused the jury and diminished the prosecutor's burden.
Even if Kent's challenge was not forfeited by his failure to raise the issue in the trial court, any error in including the model year of Jackson's car on the verdict form was plainly harmless. The jury was instructed that it could base its decisions "only on the evidence that has been presented to you in this trial" (CALCRIM No. 200), defined as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence" (CALCRIM No. 222). The jury was not told that the verdict form was evidence, so we must presume the jury did not consider the reference to "2005" in making its decision on the value of the car. (See People v. Myles (2012) 53 Cal.4th 1181, 1212.) Moreover, it is difficult to see how the revelation that the car was a 2005 model - making the car a decade old - enhanced the jury's valuation to nudge it over the $950 threshold.
There is no indication the jury would have found the car's value to be $950 or less if the verdict form had not indicated the car to be a 2005 model.
C. Ineffective Assistance of Counsel
Kent contends that to the extent he forfeited his claims of error, he received ineffective assistance of counsel. We have already addressed his ineffective assistance claim as to counsel's failure to make a hearsay objection. As to the other issues raised on appeal, we make no finding as to forfeiture, so we need not consider Kent's ineffective assistance claim further.
D. Cumulative Prejudice
Kent contends the cumulative effect of the claimed errors warrants reversal of the judgment. Because we find no error resulting in prejudice, Kent's claim of cumulative prejudice fails. (People v. Tully (2012) 54 Cal.4th 952, 1061.)
III. DISPOSITION
The judgment is affirmed. /s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.