Opinion
G056932
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DAVID ADAME, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18WF0119) OPINION Appeal from a judgment of the Superior Court of Orange County, Kevin J. Haskins, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After a jury found Richard David Adame guilty of assault and elder abuse, the trial court sentenced him to eight years in prison and imposed various fines and assessments. Adame contends the court abused its discretion in permitting a police officer to identify Adame as the person who assaulted the elderly victim based on the officer's observation of surveillance video of the assault. We find no abuse of discretion. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Adame also contends the trial court erred in imposing the fines and assessments without holding a hearing on his ability to pay. We conclude any Dueñas error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Assault at a Walgreens Store
On January 10, 2018, Jacksy Le was working as the graveyard shift manager of a Walgreens store. An elderly employee, S.T., was working the cash register. Shortly before 6 a.m., Le found S.T. unconscious on the ground and immediately called 911. After fire department personnel arrived to assist S.T., Le viewed surveillance video to determine what happened to S.T. The video depicted a suspect in a blue jacket "who left [S.T.] on the ground." Le reported his observations to his store manager, who called the police to report S.T. had been assaulted. Later that morning, Le, the store manager and a police officer viewed the surveillance video of the assault. A copy of the video was provided to the officer.
Garden Grove Police Officer Kevin Dinh testified he arrived at the Walgreens store at 7:43 a.m. in response to the assault report and viewed the surveillance video. Later that morning, Dinh heard a dispatch report from Officer Derek Link about a shoplifter Link described as "a male Hispanic, blue jacket, black pants." Due to the similarities with the suspect in the Walgreens surveillance video, Dinh believed the shoplifter might be the person who assaulted S.T. and he notified Link about the possible match. Dinh then went to the hospital to speak with S.T. However, S.T. only was able to tell Dinh his name; S.T. could not provide any information about the assault. After Dinh left the hospital, he learned Link had apprehended the shoplifter. Dinh met with Link at the Garden Grove main police station and showed Link the Walgreens surveillance video.
The parties stipulated that as a result of the assault, S.T. suffered head injuries constituting "great bodily injury as defined in Penal Code section 12022.7(a)." B. Shoplifting at a Shell Gas Station
At around 7:44 a.m. on January 10, 2018, Wendy A. was working as a cashier at a Shell gas station when she noticed Adame, who was wearing a blue jacket or sweater, walk out of the store carrying a drink and some chips without paying for the items. Wendy called the police to report the theft and shortly after, an officer drove her to a nearby liquor store to see if she could identify the thief. After Wendy identified Adame, the police officer returned the stolen items.
Officer Link testified he responded to Wendy's report of a shoplifter. While en route, he spoke with Officer Dinh and relayed Wendy's description of the shoplifter as a "male Hispanic wearing a blue jacket and black pants." Dinh responded the description matched the suspect who had "shoved an elderly man down" at a Walgreens store. Link quickly located and detained the suspected shoplifter, who was wearing a blue jacket with an emblem and black pants. Link identified Adame as the person he arrested. C. Officer Link's Identification of Walgreens Assault Suspect
After arresting Adame, Link viewed surveillance video of the assault on S.T. He identified the Walgreens assault suspect as Adame based on the fact the suspect wore the same blue jacket with an emblem. Link also stated based on his review of the video that the assault suspect "had the same pants, same jacket, same shoes, same build, same hair" as Adame.
The surveillance video of the Walgreens incident was played for the jury on multiple occasions and admitted as an exhibit. D. Plea, Verdict, and Sentence
The prosecution charged Adame with petty theft and resisting an officer during the Shell gas station incident, and also charged him with elder abuse and assaulting S.T. Before trial, Adame pleaded guilty to the gas station-related offenses. The jury convicted Adame of the offenses related to the Walgreens assault, and found true the allegation that Adame personally inflicted great bodily injury on an elderly victim (Pen. Code, §§ 368, subd. (b)(1), 12022.7, subd. (a); all further statutory references are to the Penal Code unless otherwise stated).
The trial court sentenced Adame to a total of eight years in prison. It imposed a $300 restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373). It also imposed and stayed a $300 parole revocation fine (§ 1202.45).
Adame timely appealed. While his appeal was pending and after the appellate briefs had been filed, Dueñas was issued. Appellate counsel filed an "informal Penal Code section 1237.2 motion in the trial court" raising the Dueñas issue. After the trial court refused to rule on the informal motion, appellate counsel sought and was granted leave to file supplemental briefing on the issue.
II
DISCUSSION
A. Officer Link's Identification of Adame
Before trial, defense counsel moved to preclude Officer Link from identifying Adame as the suspect who assaulted S.T. under Evidence Code sections 352 and 800. After hearing from Officer Link, the trial court concluded, based on People v. Leon (2015) 61 Cal.4th 569 (Leon), that Link could identify the assault suspect in the surveillance video as Adame. As noted, at trial Link identified Adame as the assailant based on his comparison of Adame's clothing, build, and hair to the [person depicted in the video]. Adame contends the trial court abused its discretion in permitting Link to identify him as the assault suspect and its evidentiary ruling deprived him of his federal due process right to a fair trial.
Evidence Code section 800 provides that a lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. "[T]he identity of a person is a proper subject of nonexpert opinion." (People v. Perry (1976) 60 Cal.App.3d 608, 612.) Leon, supra, is instructive and dispositive. There, the Supreme Court concluded the trial court did not abuse its discretion in permitting a police officer, who observed and spent two hours with a defendant after the defendant's arrest, to opine based on the officer's observation of surveillance video of a robbery that the defendant was the robber based on the suspect's distinctive jacket. (Leon, supra, 61 Cal.4th at p. 600.) Here, Officer Link similarly opined Adame was the assault suspect based on the distinctive blue jacket and similarity in build and hair.
Adame argues Leon is distinguishable because in that case, the defendant had changed his appearance from the time of the robbery and thus the detective's testimony was helpful to the jury. In contrast, Adame argues, there is no evidence his appearance had changed. However, as the trial court noted, at the time of the incident, Adame had a "full head of hair" but at trial, he had a shaved head with "little or no hair." Thus, Link's testimony was helpful to the jury because he described Adame's appearance at or around the time of the assault. Adame also argues Link's contact with Adame was not as extensive as the officer's contact with the defendant in Leon. But "[q]uestions about the extent of [Link's] familiarity with defendant's appearance went to the weight, not the admissibility, of his testimony." (Leon, supra, 61 Cal.4th at p. 601.) "Moreover, because the surveillance video was played for the jury, jurors could make up their own minds about whether the person shown was defendant. Because [Link's] testimony was based on his relevant personal knowledge and aided the jury, the court did not abuse its discretion by admitting it." (Ibid.)
For similar reasons, the trial court did not abuse its discretion in declining to preclude Link's testimony under Evidence Code section 352, which permits the court "in its discretion [to] exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." Link's testimony was helpful to the jury in determining a central trial issue - the identity of the assault suspect. Adame argues Link's testimony was "extremely prejudicial because it permitted a uniformed law enforcement officer to give the jury his opinion," but he cites no case - and we are not aware of any - holding that an officer's lay opinion itself constitutes undue prejudice under Evidence Code section 352. Rather, cases have expressed concern that identification of a defendant by law enforcement officers will present the defendant as a person subject to police scrutiny. (See People v. Mixon (1982) 129 Cal.App.3d 118, 129.) This concern is not warranted here because Link's familiarity with Adame was based on his arrest of Adame for petty theft, not on Adame being the subject of police surveillance. In sum, the probative value of Link's identification outweighed any prejudice to Adame.
Finally, Adame has not shown Link's identification violated his federal due process right to a fair trial. The trial court properly admitted Link's testimony under Evidence Code section 800, Link's testimony was subject to cross-examination, and the surveillance video was admitted into evidence for the jury to consider and evaluate Link's opinion. B. Dueñas Error
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Adame contends the trial court erred in ordering him to pay a restitution fine and court facilities and court operations assessments without conducting a hearing on his ability to pay that fine and those assessments. Assuming Dueñas applies, we conclude any error was harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones); People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).)
We note that in People v. Kopp (2019) 38 Cal.App.5th 47, the appellate court disagreed with Dueñas on restitution fines. (Id. at pp. 95-96.) In a concurring opinion, Justice Benke disagreed with Dueñas in its entirety. (Id. at p. 98.)
In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was unemployed, homeless, and the mother of young children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) At sentencing on a misdemeanor charge, she objected on due process grounds to the trial court's imposition of a $30 court facilities assessment, a $40 court operations assessment, and a statutory minimum $150 restitution fine. (Id. at p. 1162.) The trial court granted the defendant's request to hold a separate ability-to-pay hearing. The court considered the defendant's "uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously ordered attorney fees, and waived them on the basis of her indigence. The court concluded that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under . . . section 1465.8 were both mandatory regardless of [her] inability to pay them" (Dueñas, supra, 30 Cal.App.5th at p. 1163), and that she failed to show "'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving [the $150] fine. The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments." (Dueñas, at p. 1163.)
The Court of Appeal reversed, opining that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Moreover, when such fees are imposed on indigent defendants, the "additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.) The Dueñas court thus concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes assessments under section 1465.8 or Government Code section 70373. (Dueñas, at p. 1164.) It additionally determined courts must stay the execution of any restitution fine imposed under section 1202.4 "unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
Here, unlike in Dueñas, Adame never objected to the imposition of the restitution fine and assessments and did not seek a separate ability-to-pay hearing. Rather, he first raised the issue of his alleged inability to pay the fine and assessments in this appeal. The Attorney General contends Adame forfeited any challenge to the fine and assessments by failing to object or raise the issue below. Adame argues, however, the forfeiture rule should not apply because he raises a legal error and any objection would have been futile because his sentencing occurred before Dueñas. We need not determine whether Adame forfeited his claim of sentencing error because even if not forfeited, any Dueñas error is harmless beyond a reasonable doubt.
Based on the record, we infer that, unlike the probationer defendant in Dueñas, Adame has the ability to pay the $370 in fine and assessments, including from probable prison wages. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [concluding a fine imposed under section 1202.4 "may be based on the wages a defendant will earn in prison"]; § 1202.4, subd. (d) [noting the consideration of a "defendant's inability to pay may include his or her future earning capacity"]; Jones, supra, 36 Cal.App.5th at p. 1035 [noting prison wages range from a minimum of $12 to $56 per month depending on the prisoner's skill level].) The record does not disclose Adame suffers from any infirmity precluding him from work. Thus, he will be able to earn $1,152 in eight years at $12 per month. "The idea that [Adame] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable." (Johnson, supra, 35 Cal.App.5th at p. 139 [concluding that "because [defendant] has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt"]; Jones, supra, at p. 1035 [finding any Dueñas error harmless because defendant "will have sufficient time to earn these amounts during his sentence, even assuming [defendant] earns nothing more than the minimum."].) Accordingly, we find any Dueñas error to be harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.