Filed 5/21/14 P. v. Ward CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. SHELTON J. WARD, Defendant and Appellant. A135970 (Contra Costa County Super. Ct. No. 51112879)

INTRODUCTION A jury convicted defendant Shelton Ward of residential burglar y. The prosecution theory was that defendant help ed Darrian Shafer break into a house through a downstairs window facing the backyard while the homeo wner was upstairs, looking down on the intruders. Defendant did not te stify at trial, but Shafer’s testimony suggested defendant did not share his burglarious intent, or help him commit the burglary. Instead, defendant tried to dissuade him. On appeal defendan t contends the court erroneously excluded Shafer’s testimony regarding statements defendant made to him expressing his misgivings about th e burglary and erroneously ad mitted a prior felony juvenile adjudication to impeach defendant’s nonverbal assertive conduct of tugging at Shafer’s shirt. He also asserts the trial court misunde rstood the scope of its discretion in using the statutory formula to assess the manda tory restitution fine. We affirm.2 STATEMENT OF THE CASE Defendant was charged by information with a residential burglary in which a nonparticipant was present, a vi olent felony. (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21).) 1 The information also alleged defend ant had a prior juvenile adjudication for robbery, a serious felony. (§ 1170.12, subd. (b)(3).) A jury convicted defendant as charged. The court found true the prior adju dication allegation, but struck it pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to the aggravated term of six years in state prison. STATEMENT OF FACTS
A. Prosecution Case On June 16, 2011, the homeowner of a tw o-story house in El Cerrito was washing her breakfast dishes in her kitchen downst airs when she heard light but persistent knocking at her front door. She went upsta irs to peek through a bedroom window that faces the street, but she did not see or hear an yone. She went to her home office, which is also upstairs, where she noticed that her com puter router, the control panel of her house alarm system, and the land line for her cordless phone were all dead. She spotted two strangers in her backyard from another window. She went back to he r office, locked the door, and called 911 on her cell phone. She stayed on the phone with the dispatcher while she periodically peeked ou t the window in her office. Through that window she saw two Afri can-American men almost directly below her, about six feet away. One was short-haired, over five feet five inches tall, and wore a black T-shirt. He stood away from the house, observing and talking to the other man. The other man had dreadlocks, was about six feet tall, and wore a black hoodie and a black beanie. He was out of her sight most of the time. Although she could not see the kitchen window from her vantag e point, she saw one of the intruders thro w the screen

1 Unless otherwise indicated, all statutor y references are to the Penal Code.3 belonging to one of the kitche n windows over the fence. Sh e heard the alarm go off, and waited in the office until the police arrived an d opened the door a few minutes later. The downstairs windows facing the backyard were protected by a security system. They were equipped with contact magnets th at would sound the alarm if the magnets were separated by opening the window. The night before the burglary, the homeowner had armed her security system. She did not re call turning off the alarm the next morning. All the of the windows were still closed and lock ed with their screen s intact the next morning. When the homeowner checked the windows after the burg lary, the glass in one of the windows was broken and a screen was missing. That window was open about 40 centimeters, or just shy of on e and one-half feet. To open the window, one presses the latch, then slides the window horizonta lly. Part of the plastic window frame was chipped, as if something had be en used to pry the screen o ff the frame to gain access to the sliding part of window. The window screen, which was found on the other side of the fence, was bent in the middle. The two co ntact magnets on the window for the security system were separated. A large concrete rock was found on the ground about five feet from the window. Also, the co ver to the electrical panel on the house was unlatched, the panel door was ajar , and the main breaker sw itch to the house had been turned off. Two persons matching the homeowner’s desc ription were separately detained by the police a few blocks from the burgled h ouse. The homeowner was brought to the suspects’ locations in a police car. From the police car, the homeowner recognized one of the suspects, later identified as then 17 -year-old Darrian Shafe r, by his dreadlocks, build, and clothing – but not his face – as one of the persons she had seen in her backyard. She was then driven a short distance and identified 18-year-old defendant by his hair, clothing, face, and build as the other person she saw in her backyard. The police found fingerprints on the inner part of the sl iding window, on the latch, and on both sides of the window screen. Two fingerprint experts independently4 determined that the print found on the edge of the broken window matched defendant’s left little finger. Shafer’s pa lm print was on the screen.
B. Defense Case Prior to defendant’s trial, Shafer had been placed at Byron Boys Ranch by the juvenile court for his participation in the burg lary. He testified under immunity. On June 16, Shafer called defendant to meet him near an apartment complex in El Cerrito. When defendant arrived, Shafer told defendant he wanted to “[g]o rob a house” and chose the homeowner’s house at random. Shafer had to pressure defendant to join him, because defendant did not want to help rob the house. Shafer knocked on the front door and ra ng the doorbell while defendant stood behind him and watched. When no one answer ed, Shafer found the house’s electrical panel and switched off power to the house in order to disable the se curity alarm, while defendant stayed by the front of the house. Shafer crawled under the fence and defendant followed. Defendant remained behind Shafer while they were in th e backyard. Shafer removed the screen from a window, threw it ove r the back fence, and broke the window with a big rock. He was proceeding to clim b through the broken window into the house when Shafer felt something catch his sweatshirt . It was defendant, who grabbed Shafer’s sweatshirt and “had a grip on [him].” Defendant was trying to pull Shafer away from the window. He had one hand on Shafer’s sweats hirt and the other hand holding onto the window. Shafer tried to shak e off defendant’s grip but coul d not do so. He did not hear an alarm go off. Shafer had a change of hear t and decided to leave. The two of them then crawled back under the fe nce to the street, walking towa rds the apartment complex. Shafer could tell defendant was angry with him. Defendant ran in a panic upon seeing a police car pass by, but Shafer kept on walking. Shafer initially told the police he did not know what they were talking about but eventually admitted he atte mpted to burglarize the house. He maintained he acted alone and only met up with defendant afterwards.5 When Shafer was first contacted by a defe nse investigator he again maintained he acted alone, even after the investigator told Shafer there was a possibility defendant’s fingerprints were found at the scene , beca use he “just did not think there could be fingerprints on a window,” and he mistrusted the investigator. About a week later, during a second interview, Shafer told the investigat or defendant was with him in the backyard. The court took judicial notice of the fact that “defendant was convicted of a felony crime of moral turpitude in Contra Costa County Superior Court on March 9, 2011” and instructed the jury it could “co nsider this evidence only on the issue of credibility with respect to any nonverbal statement made by th e defendant. You may not consider this evidence for any other purpose.” DISCUSSION
1. Exclusion of Defendant’s Statem ents to Shafer was Proper. Defendant argues the trial court erred in excluding statements defendant made to Shafer before, during, and after the burglary indicating his lack of intent to commit a burglary. 2 The statements on which defendant ba ses his argument are the following: (1) When told by Shafer he intended to burglarize the victim’s home, defendant said he did not think that was a good idea ; (2) when Shafer was trying to enter the house through the window, defendant tugged at Shafer’s jacket and told him not to enter the house ; and (3) after Shafer and defendant left the backyard, defendant told Shafer he was stupid for trying to rob the house . The prosecutor objected on hearsay grounds; defendant argued the statements were not hearsay because they were not admitted for their truth, “but to explain the effect on the listener and Mr. Shafe r’s conduct.” The trial court sustained the hearsay objection, but permitted Shafer to te stify that he felt defe ndant tugging at his jacket as he attempted to enter the residence.

2 Defendant’s offer of proof regarding Shaf er’s proposed testim ony, the prosecutor’s response, and the court’s ruling occurred off th e record and are memorialized in a settled statement on appeal prepared after the fact in the trial court.6 On appeal, defendant asserts his own st atements were admissible either as nonhearsay circumstantial evidence of his la ck of criminal intent, or as hearsay statements about his lack of intent, admissible under the st ate-of-mind exception to the hearsay rule under Evidence Code section 12 50. However, so far as the settled statement shows, neither of these grounds were argued to the trial court. Instead, the defense argued the statements were admissible to prove their effect on Shafer’s conduct, an argument not made here. Arguably, defendant ’s failure to specify his theories of admissibility below forfeits his claim on appeal. ( People v. Partida (2005) 37 Cal.4th 428, 435; People v. Abel (2012) 53 Cal. 4th 891, 924; People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10, citing Evid. Code , § 354.) In any event, the claim is not meritorious. A trial court's evidentiary rulings, including those which admit or exclude evidence based on distinctions between nonhear say and the state of mind exception to the hearsay rule, are reviewed for abuse of discre tion “ ‘ “and will not be disturbed except on a showing the trial court exercised its discreti on in an arbitrary, capricious, or patently absurd manner that resu lted in a manifest misca rriage of justice.” ’ ” ( People v. Geier (2007) 41 Cal.4th 555, 585; People v. Rowland (1992) 4 Cal.4th 238, 264.) The distinction between a declarant’s nonhearsay statement of intent and a declarant’s hearsay statement of his then existing state of mind is often difficult to draw. “The threshold determination is whether the proffered statement is hearsay.” ( People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Hearsa y is “evidence of a statement that was made other than by a witness while testifyi ng at the hearing [i.e., by the declarant] and that is offered to prove the truth of the matte r stated.” (Evid. Code, § 1200, subd. (a).) On the other hand, a declarant’s statement “which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not , the fact such statement was made is relevant to a determinati on of the declarant's state of7 mind. [Citation.] . . . [S ]uch evidence must be re levant to be admissible

― the declarant's state of mind must be in issue. ([Evid. Co de,] § 210.) A limiting instruction is required with declarations used as circ umstantial evidence of the declar ant's mental state; that is, the declaration is not received for the truth of the matter stated and can only be used for the limited purpose for which it is o ffered. ([Evid. Code,] § 355.)” ( People v. Ortiz,

supra , 38 Cal.App.4th at p. 389, italics added.) Although the declarant’s (i.e., defendant’s ) state of mind (i.e., his intent) was at issue, the three statements defendant made to Shafer do not qualify as nonhearsay circumstantial evidence tending to prove by inference his lack of intent to burglarize the victim’s home. It is true th at the statements were not o ffered to prove (1) it was a bad idea to burglarize the victim’s home, (2) Shafer should not enter the house, or (3) Shafer was stupid. But if not true, those facts did not give rise to any inference about defendant’s intent. The possible inference de fendant lacked burglar ious intent springs not from the fact he made such statements, re gardless of the truth of their content; the inference, such as it is, arises only if it is true defendant believed it was a bad idea to burglarize the victim’s home -- he actually thought Shafer should not enter the house, and really did believe Shafer was stupid for trying to bur glarize the house. However, if those statements were not offered to prove the state of defendant’s true feelings, then they were not relevant to defendant’s intent an d were inadmissible as nonhearsay evidence lacking relevance to any disputed issue in the case. (Evid. Code, § 210.) Assuming the statements, if true, are re levant to defendant’s intent, they are hearsay. Evidence Code section 1250 makes ad missible, for its truth, hearsay “evidence of a statement of the declarant’s then ex isting state of mind, emotion, or physical sensation (including a statement of intent, pl an, motive, design, mental feeling, pain, or bodily health) . . . when : [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensati on at that time or at any other time when it is itself an
issue in the action ; or [¶] (2) The ev idence is offered to prove or explain acts or conduct8 of the declarant.” (Evid. Code, § 1250, subd. (a), italics added.) However, “[t]his section does not make admissible evidence of a statem ent of . . . belief to prove the fact . . . believed.” (Evid. Code, § 1250, subd. (b).) A statement that otherwise meets the re quirements of section 1250 is nevertheless inadmissible “if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (Evid. Code, § 1252.) Th e trial court also retains broad discretion to exclude otherwise admissible he arsay evidence if “its probative value is substantially outweighed by the probability that its admission will . . . crea te substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; People v. Ortiz, supra , 38 Cal.App.4th 377, 394.) In our view, the trial court properly could have excluded evidence of these hearsay statements because they were “made under circumstances such as to indicate [their] lack of trustworthiness.” (Evid. Code, § 1252 .) While defendant’s words indicate his discomfort with what was taking place, his ac tions – waiting for Shafer as he knocked on the door, following Shafer under the fence in to the backyard, standing guard in the backyard while Shafer broke the window, a nd ultimately grabbing the window himself – suggest his comments may have been a way of hedging his bets: e xpressing misgivings about the whole criminal enterpri se in case it went awry, but contributing to its success in the hope of getting away with some valuables. Under these circumstances, we cannot say the trial court abused its discretion in co ncluding defendant’s statements were an unreliable indicator of his true st ate of mind during the burglary.
2. Impeachment of Defendant’s Assertive Cond uct with Evidence of Defendant’s Prior Felony was Proper. Although the trial court excluded defend ant’s verbal statements to Shafer on hearsay grounds, it permitted Shafer to testif y about defendant’s nonverbal act of pulling Shafer away from the window by his sweatshirt. Over defense objection, the trial court later permitted the prosecutor to introduce ev idence of defendant’s prior felony, on the9 theory that the act of pulling on Shafer’s sweatshirt was assertive conduct equivalent to a hearsay statement offered to prove that defendant did not intend to participate in or withdrew from the burglary, and this nonverba l statement could be impeached just as a verbal hearsay statement could be impeached. 3 Defendant argues that his act of pulling on Shafer’s sweatshirt was not assertive conduct intended to be a subs titute for a verbal or written statement. As such, it was admitted as nonhearsay eviden ce, and was not a “statement” by a declarant subject to impeachment. While defendant’s argument ha s surface appeal, for the following reasons, it does not carry the day. Evidence Code section 1202 permits th e impeachment of a declarant’s hearsay statement by means of a prior felony conviction to attack the credibility of that hearsay declarant when his excu lpatory statements are admitted but he does not testify at trial. ( People v. Jacobs (2000) 78 Cal.App.4t h 1444, 1452-1453; People v. Little (2012) 206 Cal.App.4th 1364, 1373-1374.) Evidence Code section 225 defines a statement as an “oral or written verbal expression” or “nonver bal conduct of a person intended by him as a substitute for oral or written verbal expre ssion.” (Evid. Code, § 225, subd. (a).) As explained in the comment to Evidence Code section 1200 (defining hearsay), “evidence of a person’s conduct out of co urt is not inadmissible under the hearsay rule expressed in Section 1200 unless that conduct is clearly assertive in ch aracter. Nonassertive conduct is not hearsay.” (Evid. Code, § 1200, com .) Put differently, “ [f]or purposes of the hearsay rule, conduct is assertive if the acto r at the time intended th e conduct to convey a particular meaning to another person. [Cita tion.] For example, a nod of the head in response to a question calling for a yes-or-no an swer, or a gesture pointing to a particular

3 The trial court referred to the convicti on as a “felony crime of moral turpitude” and instructed the jury it could co nsider the evidence “only on the issue of credibility with respect to any nonverbal statemen t made by the defendant. ”10 person when asked to identify a perpetrator, are examples of assertive conduct.” ( People
v. Jurado (2006) 38 Cal.4th 72, 129.)
In Jurado , the defense unsuccessfully sought to admit at tr ial a videotape that was made, without defendant’s knowledge, while he was being interrogated by police detectives about a murder. ( Id. at p. 128.) The videotape showed defendant’s emotional displays and statements he made, incl uding an expression of remorse. ( Id. at pp. 128- 129.) The Supreme Court ruled that evidence of defendant’s emotional responses should not have been excluded as h earsay because they were not assertive conduct: “[N]othing in the videotape suggests [they] were volunta ry or that he intended them to convey any particular meaning to the interrogating officers.” ( Ibid .) The court also ruled defendant’s “statements, including assertions and descriptions of his ow n feelings and other mental states, were hearsay,” and they were not ad missible under the state-of-mind exception to the hearsay rule because they were “self- serving postcrime stat ements” made under circumstances indicating a la ck of trustworthiness. ( Id. at p. 130.) People v. Snow (1987) 44 Cal.3d 216 is al so instructive here. In Snow , a prosecutor was permitted to testify, over a defense hearsay objection, that when the prosecutor informed defense co unsel about a murdered victim’s death, defendant stood by impassively whereas defense counsel appeared shocked. ( Id. at p. 227.) The trial court impliedly found defend ant’s conduct was hearsay, but admitted the evidence of defendant’s non-response as an adoptive admission he killed the victim. ( Ibid .) The Supreme Court concluded the evidence of defendant’s passive conduct was not admissible as an adop tive admission, because no accusati on had been leveled against him for him to adopt. ( Ibid .) Nevertheless, the court fo und the evidence was properly admitted on the basis that “[d]ef endant's passive response to the prosecutor's statement was probative of defendant's pr ior knowledge of the Koll killing. Certainly, some sort of affirmative response could have been ex pected under these circumstances. Such nonassertive responses or reactions do not fa ll within the proscriptions of the hearsay11 rule. (See Evid. Code, §§ 1200 [hearsay rule applies to ‘statements’], 225 [‘statement’ does not include nonverbal conduct unintended as substitute for verbal expression] . . . .)” ( People v. Snow, supra , 44 Cal.3d 216, 227-228.) We draw the following lessons from Jurado , Snow , Jacobs , Little , and Evidence Code sections 225 and 1202: If a declaran t’s conduct is nonassertive – that is, not intended as a communicative substitute for a ve rbal statement – it may be admissible in a given case over a hearsay objection, assuming it is relevant to a disputed issue at trial. But if it is admitted as nonassertive, no nhearsay evidence, the declarant cannot be impeached with his prior co nviction because he has made no impeachable statement by his nonassertive conduct. On the other hand, if the declarant’s conduc t is assertive – that is, his conduct is intended to communicate so me message and is a substitute for a verbal statement to the same effect – it is a hear say “statement” and it is inadmissible unless it falls within the parameters of a recognized hearsay exception. If it does qualify for admission under a recognized hearsay exception, the hearsay declarant of the statement is subject to impeachment by felony conviction. Applying these lessons to the case un der review, we hold the trial court was entitled to conclude that defenda nt, by his conduct, was in eff ect telling Shafer to stop the burglary. The settled statement shows defense counsel’s offer of proof with respect to Shafer’s proposed testimony included the fo llowing: “Mr. Shafer fe lt something tugging at his jacket and turned around to look; [] Mr. Shafer saw Mr. Ward pulling on his jacket and Mr. Ward told him not to go in ; [] Mr. Shafer and Mr. Ward then left the backyard.” (Italics added.) On this reco rd, the trial court could and ev idently did decide defendant’s conduct was assertive because it was intended to comm unicate to Shafer he should stop the burglary; defendant’s c onduct qualified as a substitute nonverbal statement of defendant’s then-existing state of mind; it was made under sufficiently trustworthy circumstances, and defendant’s tugging on Shafer’s shirt wa s relevant to defendant’s intent, a disputed issue in the trial. Conseq uently, as the nonverbal statement of a hearsay12 declarant, it was subject to impeachmen t with defendant’s felony conviction under Evidence Code sections 1202 and 788. No abuse of discretion appears.
3. The Trial Court Did Not Mi sunderstand or Abuse its Discretion in Setting the Restitution Fine Pursuant to Se ction 1202.4. Pursuant to section 1202.4, 4 the trial court imposed a rest itution fine of $1,440. It arrived at that figure by using the formula provided in the statute; that is, the court multiplied the statutory minimum fine ($240) by the number of year s (six years) of defendant’s incarceration. Defendant asserts the trial court misunderstood the scope of its discretion in that it “believed that the fines could not be wa ived and that it was required to set the amount given the formula in Penal Code Section12 02.4, subd. (b)(2).” He further asserts “when appellant asked th e court for a reduction in fines, the court failed to exercise its discretion in doing so and stated that it believed it was statutorily mandated to order the restitution fines accordi ng to the calculation it used to determine the fine.” (Italics added.) The record does not support defendant’s assertions, or otherwise affirmatively show that the trial court misunderstood the proper scope of its discretion. The record

4 Penal Code section 1202.4 provides in releva nt part: “(b) In every case where a person is convicted of a crime, the court shall im pose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1 ) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred ei ghty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starti ng on January 1, 2014, and not more than ten thousand dollars ($10,000). . . . [¶ ] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonmen t the defendant is ordered to serve, multiplied by the number of felony counts of wh ich the defendant is convicted. [¶] (c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be cons idered a compelling and extraordinary reason not to impose a restitution fine. Inability to pa y may be considered only in increasing the amount of the restitution fine in excess of th e minimum fine pursuant to paragraph (1) of subdivision (b) . . . .”13 shows that before imposing th e restitution fine according to the statutory formula, the court had already determined that the aggrav ated term applied, and the court confirmed with its clerk that the statutory minimum ha d been raised to $240. After imposing the restitution fine, the parole revocation fine, and various other fines and fees, defense counsel said: “Your H onor, I’d ask the Court to consider at least waiving some of the fees and fines. One, the Court has now just sentenced Mr. Ward to state prison. He has no form of income . . . [and] he will not be getting out of pr ison any time within the next year or two. So I would ask the Court, at le ast on some of the ones that the Court is able, to waive those . . . fines.” The court waived attorney fees and the probation report fee, but noted that restitution and ot her fees were mandatory. The court added: “I don’t think there’s anything else I have the discretion to waive. If there is, tell me and I’ll consider waiving it. But I don’t think there is. Re stitution fine.” Defense counsel responded, “Yeah, no. I think the restitution fine is ma ndated and, obviously, th e actual restitution,” to which the court replied: “Right.” Nothing in the court’s comme nts indicate it believed it was required to employ the statutory formula for fixing an appropriate res titution fine. On the co ntrary, the record on the whole supports the inferen ce the court was well acquainted with the statute, knew the restitution fine was mandatory absent extr aordinary and compelling circumstances, and knew the minimum fine had increased. The statute unambiguously provides that use of the statutory formula is discretionary; inability to pay does not constitu te an extraordinary or compelling reason to waive the restitution fine; and the restituti on fine should reflect the seriousness of the offense. No misunde rstanding or abuse of discretion appears.14 DISPOSITION The judgment is affirmed.

_

____________ ____________ Dondero, Acting P.J.

We concur:

_____________ ____________ Banke, J.

_____________ ____________ Becton, J. *

* Judge of the Contra Costa County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.