Filed 1/24/20 P. v. Steele CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL WAYNE STEELE,

Defendant and Appellant.

C086295, C086596

(Super. Ct. Nos. 13F5923, 16F1249, 16F1918, 17F2525)

Defendant Michael Wayne Steele was found guilty of grand theft of personal property for removing a global positioning system (GPS) ankle monitor from his leg after he was released from custody on his own recognizance while awaiting trial in another matter. After pleading to various offenses in several other cases, defendant was sentenced to an aggregate term of six years in state prison.

On appeal, defendant contends the evidence at trial was insufficient to establish any theft offense because the jury could not infer that he appropriated or converted the GPS tracking device. He also argues that insufficient evidence established a trespassory taking, which is required for the offense of theft by larceny–the only theft theory the prosecution presented to the jury, and that we should reverse and dismiss the conviction without determining whether sufficient evidence would have supported theft on another theory. Alternatively, he contends his grand theft conviction must be reversed and the matter remanded for a new trial on a theft by embezzlement theory, which he argues is more appropriate given the facts.

In supplemental briefing, defendant contends the matter should be remanded for a hearing on his ability to pay the fines, fees, and assessments imposed by the trial court, or else this court should strike the court facilities assessment and conviction assessment and stay the restitution fine absent a finding that he has the present ability to pay those fines. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).)

We conclude sufficient evidence shows defendant appropriated the GPS device and committed a trespassory taking when he removed it from his ankle. We therefore affirm defendant’s theft conviction, and do not reach defendant’s remaining theft-related contentions on appeal. We further conclude that the trial court properly imposed the fines, fees, and assessments, and that remand for an ability to pay hearing is unnecessary. We therefore affirm the judgment.

FACTS AND PROCEEDINGS

In November 2015, defendant was released on his own recognizance with a GPS ankle monitor. At the time, he was transient.

A supervised own recognizance (SOR) release agreement and a GPS agreement required defendant to keep the GPS unit charged and return the device when instructed. He was prohibited from removing the device from his ankle.

Five days after he was released, the GPS battery died. After the battery died, the probation department lost the ability to track defendant, and it was not aware of defendant’s whereabouts or the location of the GPS device.

About three months later, in February 2016, police detained defendant after responding to an early morning call of a man tampering with a business; he was charging his cell phone at an outdoor outlet. After confirming defendant’s identity and learning of his supervised status, the officer contacted probation. The probation officer verified defendant was in violation of the release agreements and authorized his arrest. When defendant was taken into custody, the ankle monitor was not attached to his leg but the charger for the device was in his possession.

Neither the arresting officer nor the probation officer asked defendant why the GPS monitoring device was not on his ankle, or where it was. Although probation officers tried to locate the GPS unit at the locations that were last reported by the GPS coordinates, they were unable to locate the device.

Defendant was charged with grand theft by larceny of personal property in Shasta County case No. 16F1249. (Pen. Code, § 487, subd. (a); statutory section references that follow are found in the Penal Code, unless otherwise stated.) Two on-bail enhancements were also alleged.

During trial, the arresting officer and probation officers testified to the above facts. Defendant did not testify or call any witnesses.

The court instructed the jury with the following theft by larceny instruction, based on CALCRIM No. 1800: “The defendant is charged in Count I with grand theft by larceny in violation of Penal Code section 487. To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant took possession of property owned by someone else. Two, the defendant took that property without the owner or owner’s agent’s consent. Three, when the defendant took the property he intended to deprive the owner of it permanently or to remove it from the owner or owner’s agent’s possession for so extended a period of time that the owner would be deprived of the major portion of the value or enjoyment of the property. And, four, the defendant moved the property, even a small distance and kept it for a period of time, however brief. . . .” Neither party requested that the court instruct the jury on any other theory of theft.

A jury found defendant guilty as charged, and in a subsequent proceeding, the court found one of the on-bail enhancements true. The court sentenced defendant to an aggregate term of six years in state prison for all four cases. Defendant received the midterm of two years for the failure to appear offense in case No. 17F2525, one third the midterm of eight months for the grand theft offense plus two years for the on-bail enhancement in case No. 16F1249, one third the midterm of eight months for the maintaining a place for the use of a controlled substance conviction in case No. 13F5923, and one third the midterm of eight months for the failing to appear offense in case No. 16F1918. The court imposed a $160 court operations assessment (§ 1465.8), a $120 criminal facilities assessment (Gov. Code, § 70373), and as to each of the four cases, a $300 restitution fine (§ 1202.4) and a suspended $300 parole revocation restitution fine (§ 1202.45). The court permanently stayed a $780 “felony fine” on each case. He appeals, raising only issues related to his grand theft by larceny conviction in case No. 16F1249, and the restitution fines and mandatory assessments imposed by the court.

DISCUSSION

I

Theft Conviction

Defendant attacks his theft conviction on two grounds. He first argues insufficient evidence proved he committed any type of theft because the jury could not reasonably infer he willfully appropriated the GPS device “to the exclusion of every other reasonable hypothesis explaining the GPS’s absence.” He next contends that insufficient evidence showed a trespassory taking for theft by larceny because the probation department voluntarily relinquished the GPS device to him subject to a contractual agreement. Even if the evidence was sufficient to support a theft on some theory–such as embezzlement–defendant claims he is entitled to a new trial where the jury is instructed on that theory. His arguments are not meritorious.

In 1927, the Legislature consolidated what had previously been three separate theft offenses of larceny, false pretenses, and embezzlement in section 484. (People v. Williams (2013) 57 Cal.4th 776, 785-786 (Williams).) That statute provides in relevant part: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.” (§ 484, subd. (a); enacted in 1872, amended by Stats. 1927, ch. 619, § 1, p. 1046.)

The consolidation was intended to remove common law technicalities that existed in the pleading and proof of these crimes. (Williams, supra, 57 Cal.4th at pp. 785-786.) After consolidation, “ ‘indictments and informations charging the crime of “theft” can now simply allege an “unlawful taking.” ’ ” (Id. at p. 786.) “ ‘The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.’ ” (Ibid.) Thus, larceny and embezzlement are different statements of the same offense of theft, although they each have different elements. (People v. Vidana (2016) 1 Cal.5th 632, 647-648 (Vidana); § 484.)

“California statutorily defines the crime of theft by larceny as the felonious stealing, taking, carrying, leading, or driving away of the personal property of another.” (Williams, supra, 57 Cal.4th at pp. 781-782; § 484.) “Larceny ‘is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with the intent to steal the property, and (6) carries the property away.’ ” (Vidana, supra, 1 Cal.5th at p. 639.) A trespassory taking “is a taking without the property owner’s consent.” (Williams, at p. 783.) A “[t]aking” “has two aspects: (1) achieving possession of the property, known as ‘caption,’ and (2) carrying the property away, or ‘asportation.’ ” (People v. Gomez (2008) 43 Cal.4th 249, 255.) The slightest movement may constitute asportation. (Ibid.)

Embezzlement, on the other hand, “is the fraudulent appropriation of property by a person to whom it has been intrusted.” (§ 503.) “[U]nlike larceny . . . ‘[a] distinct act of taking is not necessary to constitute embezzlement.’ ” (Vidana, supra, 1 Cal.5th at pp. 644-645; § 509.) Instead, embezzlement involves “an initial, lawful possession of the victim’s property, followed by its misappropriation.” (Williams, supra, 57 Cal.4th at p. 784.)

In challenging the sufficiency of the evidence to support his theft conviction, defendant initially makes a broad challenge that he did not commit any type of theft because the evidence was insufficient to show he appropriated the GPS device. While he concedes the evidence showed he removed the device from his ankle, he contends the People presented no evidence showing what happened to the device after he removed it. In his view, any number of plausible scenarios could explain the device’s absence from his ankle, including that he left the device at his tent, that someone stole it, or that he temporarily removed it when entering an establishment and simply forgot it. Given these potential explanations, the jury could not reasonably infer that he appropriated the device.

Defendant, however, misapprehends the standard of review that governs his appellate challenge. In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the record as a whole in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509; People v. Valdez (2004) 32 Cal.4th 73, 104.) “ ‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn therefrom. (People v. Lopez (2013) 56 Cal.4th 1028, 1069-1070, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) “ ‘If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’ ” (People v. Kaufman (2017) 17 Cal.App.5th 370, 380-381.)

The hypotheticals defendant posits view the evidence in the light most favorable to himself rather than in favor of the verdict as required. (People v. Davis, supra, 10 Cal.4th at p. 509.) When viewed properly, the record contains sufficient evidence showing defendant “appropriated” the GPS device for his own purposes, even if the precise purpose (or happenstance) is not revealed in the record.

The probation department placed the GPS device on defendant’s ankle in November 2015. The probation department retained ownership of the device, and defendant was not permitted to remove it from his leg. When he was arrested, the GPS device was not on his ankle, and defendant concedes the jury reasonably could have inferred that he removed the device. Based on that evidence, the jury also reasonably could find that by removing the device from his ankle, defendant “appropriated” it for his own use in some other capacity, to which the probation department did not otherwise approve or consent. The fact that the probation officer had “no idea” what defendant did with the device once he removed it does not mean that removing the device was any less of an appropriation.

Defendant’s more narrow challenge to his conviction–that insufficient evidence showed a trespassory taking–is likewise without merit. While it may be true that the probation department voluntarily relinquished the GPS device to him subject to a contractual agreement, the department did so under very specific parameters, namely, that the device remain on defendant’s ankle and that he not remove it. In other words, the probation department’s consent to defendant having the device extended only so far as his ankle, and no further. Once defendant removed the device from his ankle, he committed a trespassory taking. (Williams, supra, 57 Cal.4th at p. 783 [a trespassory taking is a taking without the proper owner’s consent].) Sufficient evidence therefore supports his theft conviction.

II

Ability to Pay

In supplemental briefing, defendant argues the trial court erred by imposing the restitution fines and mandatory assessments without finding that he had the ability to pay them. As noted, the trial court imposed various fines and assessments in all four cases, including a $300 restitution fine and a stayed $300 parole revocation restitution fine in each case, a $160 court operations assessment, and a $120 court facilities assessment.

A. Dueñas

Relying primarily on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that imposing the above fines and assessments without a hearing to determine his ability to pay them violated his right to due process, equal protection, and the prohibition against excessive fines. We hold that Dueñas was wrongly decided regarding the issue of hearings on the ability to pay fines and fees before they are ordered by the trial court.

Dueñas held “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 court facilities and court operations assessments under []section 1465.8 and Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held “that although []section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed 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.” (Ibid.)

The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the “ ‘constitutional guaranties of due process and equal protection’ ” and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326 (Hicks), rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.) (Gutierrez).) Griffin also stated broadly, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Griffin, at p. 19.) Another line of cases relied upon by Dueñas is related by this “principle of ‘equal justice’ ” and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, at pp. 1166-1168.)

The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant “only to a civil judgment that she [or he] cannot satisfy.” (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326; Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, “[w]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.” (Id. at p. 116, italics added.) In other words, “Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them.” (Hicks, at p. 327.)

Further, “the fundamental policy question presented in Dueñas is a nettlesome one–namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?” (Hicks, supra, 40 Cal.App.5th at p. 328.) This “is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature.” (Id. at p. 329.)

We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329; Aviles, supra, 39 Cal.App.5th at p. 1069; Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant’s claim pursuant thereto is without merit.

B. Excessive Fines Clause

In a related argument, defendant contends that imposing the minimum $300 restitution fine in each of his four cases without considering his ability to pay violated the excessive fines clauses of the federal and state constitutions (U.S. Const., Amend. VIII; Cal Const., art. I, § 17). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731[after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].) We disagree.

“The Eighth Amendment prohibits the imposition of excessive fines. The word ‘fine,’ as used in that provision, has been interpreted to be ‘ “a payment to a sovereign as punishment for some offense.” ’ [Citation.]” (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321, 141 L.Ed.2d 314 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant’s federal and state excessive fines claims].)

“ ‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.’ (Bajakajian, supra, 524 U.S. at p. 334.)

“The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]’ (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337–338.)” (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Id. at p. 1072.)

Here, we find that the $300 restitution fines imposed for each of defendant’s four cases are not grossly disproportional to the level of harm and defendant’s culpability in these matters. The amount is minimal compared to approximately $1,740 cost to replace the GPS device defendant was convicted of stealing. For the drug case, defendant was convicted of maintaining a place for controlled substance use, a clear societal harm. And for the failure to appear cases, a minimum fine was not grossly disproportionate in light of defendant’s wanton disregard for the court’s orders and the costs to the system incurred as a result of defendant’s nonappearance. Accordingly, the $300 restitution fine imposed in each of these cases is not excessive under the Eighth Amendment.

C. Equal Protection

Finally, defendant argues that imposing the fines and fees without considering his ability to pay them violates equal protection. This argument fails for the same reason the due process analysis does.

As noted in Aviles, supra, 39 Cal.App.5th at pages 1068-1069: “Dueñas’s due process and equal protection analysis was improperly based on a series of cases that addressed the concern ‘that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he would receive an adequate and effective examination of his criminal conviction. [Citation.]’ (Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.).) Dueñas’s reliance on certain statutes was also incorrect because ‘these statutes instead ensure that all people, without regard to economic status, have equal access to our justice system.’ (Ibid.) The fine and assessments imposed on the probationer in Dueñas did not raise ‘an issue of access to our courts or justice system’ or satisfy ‘the traditional due process definition of a taking of life, liberty or property.’ (Ibid.) ‘[There is] no general due process and equal protection authority which requires a court to conduct a preassessment present ability-to-pay hearing before imposing any fine or fee on a defendant, as Dueñas seems to conclude. . . .’ (Ibid.)” Therefore, the trial court did not violate equal protection in failing to conduct an ability to pay hearing prior to imposing the fines and fees here. (See also People v. Glenn (1985) 164 Cal.App.3d 736, 739-740 [imposing the minimum restitution fine without considering a defendant’s ability to pay does not violate the equal protection clause].)

DISPOSITION

The judgment is affirmed.

HULL, J.

We concur:

RAYE, P. J.

BUTZ, J.