1

Filed 5/6/21 P. v. Fernandez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent

,

v.

CHRISTOPHER FERNANDEZ

,

Defendant and Appellant

. A160192

( Napa County

Super. Ct. No. 18CR001517 )

D efendant Christopher Fernandez appeals from a judgment after a jury

found him guilty of various counts of conspiracy

, theft, burglary, vandalism,

and identity thef

t

. He contends that (1) there was insufficient evidence and

improper jury instructions on his three separate convictions for conspiracy;

(2) there was insufficient evidence to support even one convi ction for

conspiracy; (3) there was insufficient evidence and improper jury instructions

on his conviction for felony grand theft; (4) the trial court abused its

discretion in denying his motion for mistrial based on a detective’s unsolicited

testimony during cross

- examination that defendant had refused to consent to

a search of his phone ; (5) the trial court abused its discretion in allowing the

prosecutor to improperly refresh the recollection of a witness ; and (6) the

sentencing hearing minute order c ontains a clerical error regarding his

misdemeanor petty theft conviction

.2

We agree , and the Attorney General concedes, that there was

insufficient evidence to support defendant’s three separate conspiracy

convictions . We also agree that there was insuffi cient evidence to establish

the $950 threshold for defendant’s felony grand theft conviction. Accordingly,

we modify the judgment to strike two of defendant’s conspiracy convictions

and to reduce his felony grand theft conviction to misdemeanor petty thef t.

We remand for resentencing on the misdemeanor petty theft conviction

, and

also for sentencing on defendant’s two other misdemeanor convictions as the

trial court failed to sentence defendant on these convictions

. We affirm the

judgment in all other respects.

F ACTUAL AND P ROCEDURAL B ACKGROUND

D efendant was charged with three counts of felony conspiracy (Pen.

Code, § 182(a)(1) ) (counts 1, 4, and 6 ) ; 1 two counts of felony grand theft

( § 487(a) ) (counts 2

– 3) ; one count of felony vandalism ( § 594(b)(1)) (count 5);

five counts of felony second degree burglary (§ § 459 , 460 ) (counts 7

– 11) ; and

one count of misdemeanor identity theft ( § 530.5(c) ) (count 12)

. The

information alleged that , on April 6, 2018, defendant and an unknown co

conspirator had driven to the victim business, Paradise Pools

, Inc. (Paradise

Pools ) , to preview its property. It further alleged that

, on April 7 and April 8,

2018, defendant broke into several Paradise Pool trucks and stole tools and

other items

.

The People filed an amended information, which contained the same

counts but alleged that the second degree burglaries were committed by

entering Paradise Pools’ commercial vehicles, not its building. During the

trial, the People moved to reduce the count of grand theft occurring on April

1 Unless otherwise indicated, all further section references will be to

the Penal Code.3

8, 2018 (count 3) to a misdemeanor , and to dismiss one of the burglary counts

(count 11)

.

A. Trial Testimony

The following is a brief summary of some of the trial evidence, which

we set out to provide context to the claims raised on appeal.

Neftali Sanchez

, a service manager at Paradise Pools

, testified that he

walked out to the office parking lot on the evening of April 6, 2018, and

noticed an older blue pickup truck entering the lot. T he truck’s headlights

were off. He started his own car and then followed the truck to the parking

lot entrance, where he wrote down its license plate number

. Neftali Sanchez

could see t hat there were two individuals in the truck

, and that the

passenger w as “Caucasian” with a “big build ” and a goatee. He was unable

,

however, to positively identify defendant as the passenger in a subsequent

photograph line

- up

. At trial, Neftali Sanchez testified that defendant

“possibly look [ed] familiar” to him.

Randy Willems

, the owner of Paradise Pools, testified that he arrived to

the office on April 7, 2018 and learned that several trucks had been broken

into overnight

. Tools, gas cards, and paperwork were missing from the

trucks

. The s urv eillance video footage from the parking lot showed two

individuals “breaking the windows, and getting into the vehicles

. ” Willems

could not identify the faces from the footage, and could not tell whether one of

the individuals was defendant.

Willems testified that by the next morning, April 8, 2018, more trucks

had been broken into and more tools had been taken. He subsequently

discovered that a hole had been cut in the fence of a cemetery adjacent to

Paradise Pools’ parking lot

. T his area was out of view from the surveillance

cameras.4

Willems asked his employees to make lists of the tools and other items

that were taken from the trucks. No one documented the condition of the

tools. Willems testified that some of the tools were barely used, whereas

some of the tools had been in use for five or six years.

The o ffice manager Lauren Bishofberger typed up inventor ies of the

missing items pro vided by these employees

, one for each of the six truck s that

had been broken into

. S he went online, to websites like Home Depot and

Amazon

, to identify the prices of each item

. Bishofberger testified that she

performed this internet research because she did not have any experience o r

training in the appraisal of tools. These inventories were received into

evidence.

Officer Jarett Haggmark testified regarding t he police report of the

incident

. The report identified four Paradise Pools trucks with items that

had been taken on April 7, 2018

. Paradise Pools had previously assigned

numbers to these trucks : 13, 19, 25, and 26. The inventory for the missing

items from truck 13 totaled $1,165.09

. The inventory for the missing items

from truck 1 9 totaled $ 2,106.35

. The inventory for the missing items from

truck 2 6 totaled $ 2

, 269

. 44

. The inventory for truck 2 5 listed one tool but did

not identify any price. The inventories included tools like dri lls,

screwdrivers, wrenches, tool bags

, and extension cords. Officer Haggmark

also testified that he ran the license plate number provided by Neftali

Sanchez. The truck was registered to defendant at an address in Vacaville.

Marcy Wilkerson owned the house at 124 Dover Way in Vacaville

.

Wilkerson testified that she permitted defendant to live with her for about a

year in 2018, in exchange for doing some work on the house. She testified

that there were a number of tools in the garage, but m ost of them were not

hers

.5

Detective Garrett Wade testified that he conducted surveillance at 124

Dover Way and found that the truck registered to defendant was routinely

parked in the driveway

. He also observed the truck being driven by

defendant

. A search warrant for 124 Dover Way was obtained and executed

while neither Wilkerson nor defendant was at the property

.

Detective Wade testified that multiple tools were located in the garage,

along with a Paradise Pools truck registration card

. He testified that the

garage looked like “a homeowner’s Home Depot

. ” The truck registered to

defendant was also searched

. It contained a Paradise Pools gas card,

defendant’s work I .D. card

, a ski or Halloween mask, two

- way radios with a

headset

, binoculars, a scanner, a box of latex gloves

, an air jack

, and a

reciprocating saw

.

B. Hugo Sanchez Testimony and Objection

Hugo Sanchez

, an assistant manager at Paradise Pools, testified that

both tools and an iPad were taken from truck 26

. Upon realizing t hat the

iPad was missing, an application was used to search for the device and it

“pinged” at a location in the city of Suisun

. When asked on direct

examination if he remembered a street, he responded: “ If I’m not mistaken,

it’s

-- I want to say it’s Grove.” The prosecutor then stated that she would

show Hugo Sanchez a document to refresh his recollection. Defense counsel

objected that “ [ h ] e didn’t really say he didn’t remember” the location

. The

trial court asked the prosecutor: “Are you asking about the exact location?”

The prosecutor responded: “Yes.” The trial court overruled the objection, as

Hugo Sanchez “couldn’t provide the exact, except [ sic ] the street.” Hugo

Sanchez then reviewed the doc ument, and testified that the application

pinged on 119 Dover Way in the city of Vacaville.6

Ramon Espinosa

, a construction manager at Paradise Pools, then

testified that his phone was used to ping the missing iPad and that he took a

screenshot of the location. It was located on Dover in Vacaville.

Outside the presence of the jury, defense counsel argued that the

refreshing of Hugo Sanchez’s recollection was improper. The trial court

responded: “ I think we need to be careful when we are refreshing

recollection.” It continued: “We started slipping and sliding with some of the

other witnesses and we corrected ourselves, but I don’t have a copy of the

police report in front of me, so when Hugo Sanc hez was testifying, I thought

he was simply being asked to provide numerical address for the Grove Street

address. I didn’t realize he was going to be presented with a document which

then led him to testify oh, it’s not even Grove Street, it’s Dover Stree t. And

it’s not even the say [ sic ] same city testified to, it’s Vacaville.” The trial court,

however, found that the issue was “ not particularly prejudicial to the

defense,” as another witness then testified “that his phone was used to assist

with the pi nging location of the iPad, and he provided the address that was

ultimately testified to by Hugo Sanchez.”

C. Detective Wade Testi mony and Motion for Mistrial

On direct examination, Detective Wade testified that he had obtained a

search warrant for defendant’ s cell phone. He testified that cell phones can

be helpful in a burglary case because perpetrator s will use it to “set up” the

theft and take photographs of the stolen items to sell them

. He testified that

he was unable to access defendant’s cell phone because it was locked by a

passcode.

On cross

- examination, Detective Wade testified that a cell phone can

contain G

. P

. S

. location data that can exonerat e or prove the guilt of an

individual

. Defense counsel asked if there was information from a cell phone7

that could be retrieved from the phone carrier without accessing the device

itself

. Detective Wade responded that he did not know the carrier of

defendant’s phone or the phone number

. Defense counsel then asked if 911

can be dialed from a phone even if it is locked. Detective Wade responded: “I

guess I’ll do that next time too.” Defense counsel retorted: “Okay. Next

time.” With no question pending, Detective Wade then stated: “ Bu t your

client could have given the passcode like I asked.”

Defense counsel objected and moved to strike the statement

. The trial

court struck the answer and stated: “At this point I’m going to ask the jury to

disregard the response, please.” The trial court excused the jury for a recess.

During the colloquy with counsel, it was revealed that

, during the trial, the

prosecutor had asked defense counsel if defendant would consent to a search

of his phone.

D efense counsel promptly moved for a mistrial. He argued that

Detective Wade’s statement violated defendant’s constitutional rights, and

requested that the trial court provide the following additional curative

instruction: “You heard testimony yesterday that Detective Wade asked Mr.

Fernandez for the passcode to his phone. That testimony was not truthful.

Mr. Fernandez was never asked for his passcode. You are further instructed

to disregard that testimony and not consider it for any purpose.”

The motion for mistrial was deni ed. The trial court framed the

question as a “right against self

- incrimination issue.” It explained: “The

problem I have with this case is certainly if [the prosecutor] had opened the

door with the officer in I [ sic ] her line of questioning it would be to me a clear

violation of Doyle and Griffin. What we have here is we have defense counsel

asking question s about a cell phone where he clearly knew the People were

getting ready to either break into the phone by way of new technology and8

request ing a search warrant.” It continued: “I do think that as a defense

attorney, as I stated before, you want to be a zealous advocate, but you also

have to know when you’re walking onto a minefield, and he was calling into

question the officer’s capability as a detective, whether or not he did a

thorough investigation, giving him examples of how he could obtain

information related to the phone so that he could actually gain electronic

evidence from the phone, including calling 9

- 1

- 1 to be able to identify th e

telephone number [.] ”

The trial court concluded that “either the defense invited error, or there

is no error at all

, ” given that the trial court admonished the jury not to

consider the statement and the People “did nothing to elicit the information.”

Th e trial court declined the additional curative instruction requested by

defense counsel, stating that “it’s only going to make matters worse” and

noting the trial court was “not prepared to say that we had an officer here

who lied, because I don’t think th at’s what happened.”

D. Jury Instructions and Closing Arguments

A t the conclusion of the evidence, the jury instructions included the

standard CALCRIM No. 104 instruction

, stating in relevant part: “If I order

testimony stricken from the record, you must disregard it and must not

consider that testimony for any purpose.” The same instruction was also

provided to the jury before the presentation of evidence.

The jury instruction s also included an instruction based on CALCRIM

No. 10 8 for grand and petty the ft

. It state d that “[t]he defendant committed

grand theft if the value of the property is more than $950” and that “[t]he

value of the property is the fair market value of the property. ” It defined

“ fair market value ” as “the highest price the property would reasonably have9

been sold for in the open market at the time of and in the general location of

the theft.”

During closing arguments, the prosecutor argued that for felony grand

theft on count 2

, the amount of the stol en items totaled $5,540. She argued :

“ If you discount that by 80 percent, remember, you heard that these tools

were anywhere from practically brand new, used maybe once, or twice, to five

or six years old. If you take all of them and discount them 80 pe rcent, that’s

still over the 950. ” She continued: “ So I think the evidence has shown

sufficiently that those tools stolen on April 7th in Count 2 are worth well

above the $950 threshold for the felony charge. ”

E. Verdict and Sentencing

The jury found defendant guilty of three counts of felony conspiracy

(counts 1, 4, and 6); felony grand theft (count 2 ); misdemeanor petty theft

(count 3) ; felony vandalism ( count 5); two counts of felony second degree

burglary (counts 7 and 9 ); and one co unt of misdemeanor identity theft (count

12)

.

Defendant was sentenced to the aggravated term of three years on

count 7 ( second degree burglary ) pursuant to section 1170 , subdivision

(h)(5)(b). The trial court stated: “ as to counts Three and Twelve I’m simply

going to deny probation. Those are the two misdemeanor charges.” It

continued: “As to the remaining counts where we had convictions the court

will impose the low term of 16 months but will stay pursuant to Penal Code

section 654.” The trial court ordered defendant to serve one year in local

custody and two years on mandatory supervision.

Defendant timely appealed.10 D ISCUSSION

Defendant raises six primary arguments in this appeal

. First, he

argues that there was insufficient evidence to support his three separate

convictions for conspiracy , and that the jury instructions allowed the jury to

convict him without proof beyond a reasonable doubt of all the elements of

each conspiracy

. Second, he argues that there was insufficient evidence to

support any conviction for conspiracy

. Third, he argues that there was

insufficient evidence to support his conviction for felony grand theft , and that

the jury instructions allowed th e jury to convict him without proof beyond a

reasonable doubt that the value of the stolen property exceeded $950

.

Fourth, he argues that the trial court abused its discretion in denying his

motion for mistrial based on Detective Wade ’s statement that def endant had

refused to provide his phone passcode. Fifth , he argues that the trial court

abused its discretion in allowing the prosecutor to improperly refresh the

recollection of Hugo Sanchez

. Sixth, he argues that the re is a clerical error in

the senten cing hearing minute order regarding his misdemeanor petty theft

conviction that should be corrected

.

I. SUFFICIENCY OF EVIDENCE

We begin with defendant’s arguments challenging the sufficiency of

evidence to support (1) his multiple conspiracy convictions ; (2) any single

conspiracy conviction ; and (3) his felony grand theft conviction

. To evaluate

these claims , we review the whole record to determine whether there is

“ ‘ substantial evidence to support the verdict

— i.e., evidence that is

reasonab le, credible, and of solid value

— such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt .’ ” ( People v.

Manibusan (2013) 58 Cal.4th 40, 87.) We review the evidence “ ‘ in the light

most favorable to the prosecution a nd presume in support of the judgment11

the existence of every fact the jury could reasonably have deduced from the

evidence.’ ” ( Ibid .) Reversal on this ground is unwarranted unless “ ‘it

appears “that upon no hypothesis whatever is there sufficient subst antial

evidence to support ” the jury’s verdict .’ ” ( Ibid. )

A. Multiple Conspiracy Convictions

Defendant argues that there was insufficient evidence to support his

three separate convictions for conspiracy (counts 1, 4, and 6)

. Specifically, he

argues that there was no evidence that he entered into three separate

agreements to commit the various crimes against Paradise Pools

. The

Attorney General concedes the merit of this argument. We agree.

“ It is well

- settled that the essenc e of the crime of conspiracy is the

agreement, and thus it is the number of the agreements (not the number of

the victims or number of statutes violated) that determine the number of the

conspiracies. ” ( People v. Meneses (2008) 165 Cal.App.4t h 1648 , 1669

( Meneses ) .) “ The gist of the crime of conspiracy

. . . is the agreement or

confederation of the conspirators to commit one or more unlawful acts [.]”

( Braverman v. United States ( 1942) 317 U.S. 49, 53 .)

“ ‘Where two or more persons agree to commit a numbe r of criminal

acts, the test of whether a single conspiracy has been formed is whether the

acts “were tied together as stages in the formation of a larger all

- inclusive

combination, all directed to achieving a single unlawful end or result.” ’ ”

( Meneses

, supra

, 165 Cal.App.4t h at p. 1672.) “ ‘Relevant factors to consider

in determining this issue include whether the crimes involved the same

motives, were to occur in the same time and place and by the same means,’

and targeted a single or multiple victim s.” ( Ibid. )

Here, t here is no evidence that defendant entered into multiple

agreements to commit the crimes of theft, vandalism, and burglary against12

Paradise Pools , or that there were differing motives behind the se various

crimes. All of the crimes targ eted the same victim and occurred in the same

parking lot within a two

- day window

. We thus conclude that the evidence

was insufficient to support defendant’s three separate convictions for

conspiracy

.

While b oth parties agree that two of the conspiracy convictions should

be stricken

, they disagree on the procedure: d efendant requests that this

court strike his convictions for conspiracy to commit vandalism (count 4 ) and

conspiracy to commit burglary (count 6) , while t he Attorney General suggests

that the trial court should determine on remand which conspiracy conviction

should remain

.

An appellate court has broad discretion to reverse, affirm, or modify a

judgment “ as may be just under the circumstanc es

. ” (§ 1260.) In People v.

Patrick (1981) 126 Cal.App.3d 952

, 965 , the appellate court determined there

was instructional error that allowed the jury to convict the defendant of two

conspiracy offenses “ based on exactly the same conduct

. ” It exercised its

discretion to affirm one of the conspiracy convictions , but strike the other

.

( Id. at p. 969.) Accordingly, w e will exercise our discretion to modify the

judgment and strike defendant’s convictions for conspiracy to commit

vandalism (count 4) and conspiracy to commit burglary (count 6)

. 2

B. Remaining Conspiracy Conviction

Even after striking two of his conspiracy convictions, d efendant argues

that his remaining conviction for conspiracy to commit theft (count 1) should

2 Given our conclusion, we need not address defendant’s additional

argument that instructional error allowed the jury to convict defendant on

multiple counts of conspira cy without proof beyond a reasonable doubt of all

the elements of each conspiracy

.13

also be reversed because there was insufficient evidence to establish the

elements of conspiracy

.

“ ‘A conviction of conspiracy requires proof that the defendant and

another person had the specific intent to agree or conspire to commit an

offense, as well as the specific intent to commit the elements of that offense,

together with proof of the commission of an overt act “by one or more of the

parties to such agreement” in furtherance of the conspiracy.’ ” ( People v.

Jurado (2006) 38 Cal.4th 72, 120 .)

An express agreement is not r equired

. ( People v. Johnson (2013) 57

Cal.4th 250 , 264.) “Evidence is sufficient to prove a conspiracy to commit a

crime ‘if it supports an inference that the parties positively or tacitly came to

a mutual understanding to commit a crime. ’ ” ( People v. Rodrigues (1994) 8

Cal.4th 1060, 1135 ( Rodrigues ) .) Moreover, it is “seldom possible for the

prosecution to offer direct evidence of an agreement to commit a crime” as the

agreement is “usually made in secrecy.” ( People v. Chavez (1962) 208

Cal.App.2d 24 8 , 253 ( Chavez ) .) “ ‘ The existence of a conspiracy may be

inferred from the conduct, relationship, interests, and activities of the alleged

conspirators before and during the alleged conspiracy. ’ ” ( Rodrigues

, supra

, 8

Cal.4th at p. 1135 .) “The conspiracy must be inferred by the trier of fact from

all the circumstances that are proven, and if the inference is a reasonable one

it will not be disturbed on appeal.” ( Chavez

, supra

, 208 Cal.App.2d at p. 253.)

“Other than the agreement, the only act r equired is an overt act by any

of the conspirators, not necessarily the defendant, and that overt act need not

itself be criminal.” ( People v. Smith (2014) 60 Cal.4th 603, 616.) In other

words , it is not necessary that a defendant be “ ‘ present and personally

participate with his co

- conspirators in all or in any of the overt acts. ’ ”

( People v. Morante (1999) 20 Cal.4th 403 , 417. ) An overt act is defined as14

“ ‘ an outward act done in pursuance of the crime and in manifestation of an

intent or design , looking toward the accomplishment of the crime.’ ” ( People

v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) A single overt act can satisfy this

element of conspiracy

. ( People v. Ware (2020) 52 Cal.App.5th 919 , 939.)

Her e

, Neftali Sanchez testified that th e blue pickup truck registered to

defendant entered the Paradise Pools parking lot on the evening before the

crimes occurred with its headlights off

. He testified that there were two

individuals in the truck

, and that the passenger was “Caucasian” with a “big

build ” and a goatee. Even though Neftali Sanchez could not positively

identify defendant as the passenger in a photo lineup

, this evidence was

sufficient to establish the “overt act” element as it prove d that at least

defendant’s c o

- conspirator acted in furtherance of the thefts by driving the

truck and previewing the property on April 6, 2018

.

The evidence also showed that various tools and a Paradise Pools truck

registration card were located in the garage where defendant resided. The

truck registered to defendant contained a Paradise Pools gas card,

defendant’s work I .D. card, a mask, two

- way radios with a headset

,

binoculars, a scanner, a box of latex gloves

, an air jack

, and a reciprocating

saw

. T his evidence

, along with the preview of the property shortly before the

crimes occurred

, supports the hypothesis that defendant had agreed to

commit the theft s against Paradise Pools on April 7 and April 8, 2018.

In sum, w e conclude that there was sufficient evidence to support a

reasonable determination by the jury that the elements of conspiracy to

commit theft (count 1) were established

.

C. Felony Grand Theft Conviction

Defendant argues that there was insufficient evidence to support his

conviction for felony grand theft (count 2)

. S pecifically , he contends that15

the re was no evidence as to the fair market value of the tools and other items

stolen on April 7, 2018 , and thus no evidence to establish the $950 threshold

for the felony conviction

. We agree.

“In determining the value of the property obtained, for the purposes of

[theft offenses], the reasonable and fair market value shall be the test[.]”

(§ 484, subd. (a).) The fair market value of an item is the “ highest price ”

obtainable in the marketplace

, as between “a willing buyer and a willing

seller, neither of whom is forced to act.” ( People v. Pena (1977) 68 Cal.App.3d

100, 10 4

. )

Here, no evidence was presented regarding the fair market value of the

tools and other item s stolen on April 7, 2018 . Willems testified that none of

the tools were new, but instead ranged from “barely used” to five or six years

old

. The only evidence as to value was Bishofberger ’s online research of the

prices for new tools to replace the used tools that were stolen

. T here was no

evidence about how to properly discount those prices to reach the fair market

value of the used tools. Instead, the prosecutor argued in closing : “If you

take all of them [ the items stolen on April 7th totaling $5,540 ] and discount

them 80 percent, that’s still over the 950. ” The prosecutor’s calculation of the

maximum discount that would still satisfy the $950 threshold for felony

gr and theft is not evidence of fair market value.

The Attorney General makes two arguments to the contrary

, neither of

which we find persuasive

. First, he argues that Bishofberger ’s pricing

constituted sufficient evidence because the re are circumstances in which the

replacement price of an item may be use d in lieu of its fair market value

. In

People v. Renfro (1967) 250 Cal.App.2d 921

, 924, for example, the defendant

was convicted of stealing cable used only by telephone compan ies, purchased

from one of the few manufacturers of such cables

, and made to particular16

specifications for the company’s use

. The appellate court concluded that in

such circumstances

, where the stolen property has “ a unique or restricted use

and an extremely limited market, the actual or replacement cost to the one

from whom it was stolen is its fair market value.” ( Ibid. ) Unlike Renfro

,

however, the stools stolen here

— including drills, screwdrivers, wrenches, tool

bags, and extension cords

— are not particularly “unique” or involve an

“extremely limited” market

. ( Ibid. ) This is not a circumstance where the fair

market value should be equated with the replacement value

.

Second, the Attorney General argues that the jurors could have used

their “common sense” to draw inferences about the fair market value of the

stolen items. In People v. Ortiz (2012) 208 Cal.App.4th 1354

, 135 9

, for

example, the defendants were convicted of carjacking and kidnapping two

individuals in a two

- year

- old BMW

. The appellate court concluded that the

convictions were supported by substantial evidence, as the jury could

reasonably infer that the defendants took the vehicle to pay off a large drug

debt

, and could rely on their common knowledge that such a vehicle would

have substantial market value

. ( I d. at p p

. 1365

– 1366.) Here, we are not

convinced that the jurors possessed sufficient common knowledge of used

tools

, whose condition s were unknown

, to be able to reasonably determine

the ir fair market value

.

In sum, we conclude that there was in sufficient evidence to support the

jury’s finding that the fair market value of the items stolen on April 7, 2018

exceeded $950

. 3 Upon reaching such a conclusion

, an appellate court is

3 Given our conclusion, we need not address defendant’s additional

argument s regarding the evidence and prosecutor argument on the value of

the tools , or that instructional error allowed to the jury to convict defendant

without proof beyond a reasonable doubt that the value of the stolen property

exceeded $950.17

“ authorized to reduce the degree of the [felony grand theft] offense and fix the

same only as petty theft, and thus avoid the necessity of a retrial. ” ( People v.

Simpson (193 8 ) 26 Cal.App.2d 223 , 229

– 230.) Accordingly, we modify the

judgment to reduce defendant’s conviction on count 2 from felony grand theft

to misdemeanor petty theft , and remand for resentencing on this count

.

II. MOTION FOR MISTRIAL

Defendant argues that the trial court abused its discretion in denying

his motion for mistrial based on Detective Wade ’s statement th at defendant

had refused to provide his phone passcode. He contends that the statement

violated his constitutional rights , and that the trial court should have

provide d the additional curative instruction he requested

. The Attorney

General acknowledges t hat the spontaneous statement was improper

. He

argues, however, that the statement did not involve constitutional error and

does not warrant a mistrial

, as the trial court correctly struck the statement

and admonished the jury to disregard it

.

Trial courts are “ ‘ vested with considerable discretion in ruling on

mistrial motions

. ’ ” ( People v. Jenkins (2000) 22 Cal.4th 900, 986.) A mistrial

should be granted if the trial court is “ ‘ apprised of prejudice that it judges

incurable by admonition or inst ruction

. ’ ” ( I bi d

. ) “ ‘Juries often hear

unsolicited and inadmissible comments and in order for trials to proceed

without constant mistrial, it is axiomatic the prejudicial effect of these

comments may be corrected by judicial admonishment ; absent eviden ce to the

contrary the error is deemed cured .’ ” ( People v. McNally (2015) 236

Cal.App.4th 1419, 1428

– 1429 ( McNally ) .) We review a ruling on a motion for

a mistrial “for an abuse of discretion,” recognizing that a motion for mistrial

should be granted only when “ ‘ “ ‘a [defendant ’ s] chances of receiving a fair

trial have been irreparably damaged’ ” ’ ” ( People v. Collins (2010) 49 Cal.4th18

175, 198 ( Collins ) ) and where “ ‘ “the improper subject matter is of such a

character that its effect

. . . cannot be removed by the court ’ s admonitions” ’ ”

( McNally

, supra , 236 Cal.App.4th at p. 1429).

Defendant contends that his rights under the Fifth and Fourteenth

Amendment of the United States Constitution were violated by Detective

Wade’s statement

. He relies on People v. Keener (1983) 148 Cal.App.3d 73

( Keener ) and People v. Wood (2002) 103 Cal.App.4th 803 ( Wood ) to support

this position

. In Keener

, the trial court permitted the prosecution to

introduce evidence showing defendant had refused to leave his apartment

upon request of a SWAT team

. ( Keener

, supra

, 148 Cal.App.3d at p. 78.)

Four SWAT officers then testified “to what can only be characteriz ed as a

siege of defendant ’ s apartment,” including “how they tried to coax Keener out

of the apartment” and how he responded. ( Ibid. ) “Evidence of the siege was

offered to show a consciousness of guilt; i.e., if defendant was not guilty he

would have imm ediately surrendered.” ( Ibid .) Keener concluded that

admission of such evidence violated defendant’s privilege to be free from

comment upon the assertion of a constitutional right. ( Ibid .)

In Wood

, a police officer testified that the defendant had refused entry

on to his property when asked by the officer

. ( Wood

, supra , 103 Cal.App.4th

at p. 807.) The t estimony was given after the trial court overruled defense

counsel’s objections under the Fifth and Fourteenth Amendment. ( Ibid. )

Wood concluded that the objection s should have been sustained because

defendant’s invocation of his constitutional rights was “ improperly being used

for the purpose of showing he had something to hide, or, in other words,

demonstrating his consciousness of his guilt. ” ( Id. at p. 809 .) “ In effect, the

testimony punished defendant for asserting his r ight to have the officer

obtain a warrant. ” ( Ibid. )19

We are not convinced that the facts here give rise to the constitutional

error identified in Keener and Wood

. As the trial court explained, Detective

Wade’s statement regarding defendant’s refusal to pr ovide his passcode was

made during cross

- examination

. While Detective Wade had testified on direct

that defendant’s cell phone was locked, the prosecutor did not elicit any

testimony regarding a request that defendant provide his passcode, or any

refusal of such a request. On cross

- examination, t he line of questioning

leading up to Detective Wade’s statement made clear that defense counsel

was attacking the thorough ness of the investigation and Detective Wade’s

competency

, by providing examples of how Detective Wade could have

o btain ed information from the phone without having the passcode. These

questions regarding access to defendant’s phone were not asked for the

purpose of showing defendant ’s consciousness of guilt.

Moreover, we agree with the trial court that any error arising from

Detective Wade’s statement was harmless. Given our rejection of defendant’s

constitutional error argument

, the denial of def endant’s mistrial motion is

subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d

818 ( Watson )

. ( People v. Welch (1999) 20 Cal.4th 701, 749

– 750

. ) Under this

standard, we must ask whether it is “reasonably probable that the jury was

i nfluenced by such evidence to defendant’s prejudice, or that the admission of

such evidence affected the verdict. ” ( Watson

, supra

, 46 Cal.2d at p. 837 .)

As a preliminary matter

, we conclude it was not “reasonably probable”

that the jury was affected by Detective Wade’s statement to defendant’s

prejudice. ( Watson

, supra , 46 Cal.2d at p. 837.) Detective Wade testified that

a phone can contain data that may either exonerate or prove the guilt of an

individual. Thus, Detective Wade’s comment d id not necessarily suggest

defendant’s consciousness of guilt

. ( See Wood

, supra , 103 Cal.App.4th at p.20

80 9.) More importantly, the comment was not admitted into evidence. “ It is

the general rule that when an unexpected answer of a witness, which could

not be anticipated by objection to the question, contains inadmissible and

prejudicial matter, a motion to strike it out is the proper remedy. ” ( People v.

Glass (1954) 127 Cal.App.2d 751 , 753.) T he trial court granted defense

counsel’s motion to st rike Detective Wade’s statement

, and admonished the

jury to disregard it

.

Finally, defendant argues that the trial court abused its discretion in

declining to provide an additional curative instruction. In his motion for

mistrial

, d efendant requested that the trial court further instruct the jury

that Detective Wade’s testimony “ was not truthful ” and repeat its instruction

that the testimony should be disregarded. Defendant offer s no authority ( in

his underlying motion or on appeal ) to suppo rt this argument

, and does not

address the conflict between his proposed additional instruction and the

instruction that the jury “alone, must judge the credibility or believability of

the witnesses

. ” W e thus reject the argument.

In sum, we conclude that the trial court did not abuse its discretion in

denying defendant’s motion for mistrial.

III. EVIDENTIARY RULING ON REFRESHING RECOLLECTION

Defendant argues that the trial court abused its discretion in

overruling defense counsel’s objection and allowing the prosecutor to

improperly refresh the recollection of Hugo Sanchez as to the location of the

iPad ping using a police report that contained hearsay

. We review the trial

court ’ s evidentiary ruling for an abuse of discretion. ( People v. Waidla (2000)

22 Cal.4th 690, 717. )

“ A witness may refer to hearsay to refresh his recollection; however,

before doing so the witness must testify he cannot remember the fact sought21

to be elicited. ” ( People v. Lee (1990) 219 Cal.App.3d 829

, 840

. ) When asked if

he could remember the street where the iPad pinged

, Hugo Sanchez did not

testify that he could not remember this fact

. Instead, he responded: “If I’m

not mistaken, it’s

-- I want to say it’s Grove.” A t this point in his testimony

,

t here was no basis to refresh his recollection with the police report and t he

trial court erred in overruling defense counsel’s objection

.

We conclude, however, that the error was harmless. Another witness,

Ramon Espinosa

, testified that his phone was used to ping the missing iPad

and that he took a screenshot of the location. Espinosa testified that the ping

was located on Dover in Vacaville. In light of this additional testimony

, it

was not “ reasonably probable ” that defendant would ha ve obtained a more

favorable result absent the error. ( Watson

, supra

, 46 Cal.2d at p. 837 .) W e

thus conclude that the trial court did not abuse its discretion in overruling

defense counsel’s objection

. 4

IV. Minute Order and Sentencing on Misdemeanors

Defendant argues that the minute order from the sentencing hearing

contains a clerical error , as the conviction on count 3 was for misdemeanor

petty theft, not felony grand theft

. The Attorney General concedes that the

minute order incorrectly reflects both a felony offense and felony term ( “Low

term of 16 months, stayed pursuant to 654 PC” ) for count 3

. He contends

,

however, that the trial court made a sentencing error on both count 3 and

count 12 that requires remand , not just correction of the clerical error

. He

argues that the trial court erred because it did not sentence defendant on

either of these misdemeanor convictions

. We agree.

4 Having concluded that defendant’s specific challenges to the

testimony of Detective Wade and Hugo Sanchez yield no prejudicial error , we

need not address defendant’s argument that his convictions should be

reversed for cumulative error

.22

Section 12 provides: “ The several sec tions of this Code which declare

certain crimes to be punishable as therein mentioned, devolve a duty upon

the Court authorized to pass sentence, to determine and impose the

punishment prescribed. ” Pursuant to this duty

, the trial court “ ‘ must either

sen tence the defendant or grant probation in a lawful manner; it has no other

discretion.’ ” ( People v. Alford (2010) 180 Cal.App.4th 1463, 1468 ( Alford ) .)

T he record from the sentencing hearing reflects that the trial court did

not fully discharge this duty . T he trial court sentenced defendant on all

seven felony convictions, imposing a sentence of three years for count 7, and

imposing but staying a sentence of 16 months on the other six felony counts.

On the two misdemeanor convictions, however, the trial court stated it was

“ simply going to deny probation. ” Upon denial of probation, the trial court

should have sentenced defendant on these two counts. ( See Alford

, supra

,

180 Cal.App.4th at p. 1468 [explaining that a trial court must sentence a

defendant on all counts, even if it ultimately stays the sentence ] .)

Accordingly, we remand for sentencing on defendant’s convictions for

misdemeanor petty theft (count 3) and identity theft (count 12)

.

D ISPOSITION

The judgment is modified to strike defendant’s convictions for

conspiracy to commit vandalism (count 4) and conspiracy to commit burglary

(count 6 ), and to reduce defendant’s conviction for felony grand theft to

misdemeanor petty theft (count 2 ) . We remand for resentencing on th is

misdemeanor petty theft conviction (count 2) , and also for sentencing on

defendant’s convictions for misdemeanor petty theft (count 3) and identity

theft (count 12)

. Following remand, t he trial court is directed to prepare an

amended minute order that reflects the above modifications to the judgment,

as well as defendant’s resentencing on the misdem eanor petty theft23

conviction (count 2) , and defendant’s sentencing on the misdemeanor petty

theft conviction ( count 3 ) and identity theft conviction (count 12 )

. In all other

respects, the judgment is affirmed.24 _________________________ Pe trou, Acting P.J.

WE CONCUR:

_________________________ Jackson, J.

_________________________ Wiseman, J. *

People v. Fernandez/ A160192

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District,

assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.