Filed 6/15/15 P. v. Goodwin CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065440
Plaintiff and Respondent,
v. (Super. Ct. Nos. SDC243102 & SCD247172) EDWARD GOODWIN,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alastair J.
Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Edward Goodwin appeals from two judgments, one following a jury
trial (People v. Goodwin (Super. Ct. San Diego County, 2014, No. SCD243102)
(SDC243102)), and one following a guilty plea (People v. Goodwin (Super. Ct. San
Diego County, 2014, No. SCD247172) (SCD247172)).
In SDC243102, a jury convicted Goodwin of one count of first degree burglary of
an inhabited dwelling while another person, other than an accomplice, was present in the
residence (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21))1 and one count of first
degree robbery while another person, other than an accomplice, was present in the
residence (§§ 211, 212.5, subd. (a)). The court sentenced Goodwin, in part, to prison for
one year four months to be served consecutively on each of the two counts.
In SDC247172, as relevant to the issues on appeal, Goodwin pleaded guilty to one
count of receiving stolen property (§ 496, subd. (a)) and one count of first degree
burglary2 (§§ 459, 460, subd. (a)). With enhancements, the court sentenced Goodwin to
prison for 10 years eight months, to be served consecutively to the term imposed in
SDC243102; and as pertinent to the issues on appeal, the court imposed a restitution fine
of $10,000 (§ 1202.4, subd. (b)).
1 Further undesignated statutory references are to the Penal Code.
2 As part of the plea, Goodwin also admitted two enhancement allegations to the burglary offense. (§ 667.5, subd. (c)(21) [another person, other than an accomplice, was present in the residence at the time of the first degree burglary]; § 12022.1, subd. (b) [defendant out on bail at time of charged offense].)
2 On appeal, Goodwin raises three issues from SDC243102 and one issue from
SDC247172. In the appeal from SDC243102, Goodwin argues: (1) because his actions
in the burglary and robbery constituted a single course of conduct with a single objective,
section 654 precluded the court from imposing consecutive sentences; (2) the record
lacks substantial evidence to support the jury's finding that Goodwin's burglary was a
violent felony under section 667.5, subdivision (c)(21); and (3) the court erred in
admitting testimony as to Goodwin's prior conviction for second degree commercial
burglary. In the appeal from SDC247172, Goodwin argues that the court abused its
discretion in setting the section 1202.4, subdivision (b) restitution fine at $10,000.
As we explain, we do not find any error and will affirm both judgments.
I.
FACTUAL AND PROCEDURAL BACKGROUND3
A. SDC243102
Deborah Johnston and her husband lived in the Clairemont area of San Diego. On
August 10, 2012, with her husband out of town, Johnston left her home midmorning to
meet friends for brunch at 11:00 a.m. She locked the doors, but left the windows open
and the ceiling fans on due to the warm weather. She returned home around 1:00 p.m.,
parked her car in the attached garage and entered the residence in the kitchen-dining
room area.
3 We recite the facts and inferences from facts in a light most favorable to the judgments. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
3 After setting her purse down on a counter, Johnston heard a noise from the back of
the house that frightened her; her husband was out of town, and nobody should have been
in the house. Johnston began calling out, " 'Is somebody here? Is somebody back
there?' " and started down a hallway that led to the bedrooms. As Johnston approached
the end of the hallway, a man — whom Johnston later identified as Goodwin — came out
of the back bedroom, charging toward her. Johnston reacted by shrieking and screaming
that he should " 'Get out of my house.' " Goodwin had one of Johnston's suitcases in his
right hand, and he had his left arm in front of his mouth and nose in a V-shape with his
elbow protruding forward. Although Johnston attempted to push Goodwin back toward
the bedrooms in the narrow hallway, he continued charging toward her, forcing her back
down the hallway, causing her to fall backward over a coffee table in the living room.
Goodwin continued on through the living room, leaving through the front door.
Johnston chased Goodwin down the steps of the front porch, onto the front patio
and down the front walkway, screaming " 'thief' " and " 'I have been robbed,' " hoping
that someone would hear and help her. Someone did — a contractor who identified
Goodwin at trial. The contractor had been working on the side of a house across the
street from Johnston's when he heard Johnston's screams; and as he came to the front of
the house, he saw Goodwin burst out of Johnston's house carrying the suitcase.
Goodwin, suitcase in hand, ran to and entered a white Chevrolet automobile that
was parked in front of Johnston's house, facing in a direction to exit the cul-de-sac and
neighborhood. Neither Johnston nor the contractor was able to stop Goodwin, but
4 Johnston noted the license plate number of the Chevrolet and immediately went inside
her house and called 911 to report the incident.
Johnston found the top drawer of each nightstand in each bedroom opened, and the
bedroom in which she had kept her jewelry "had been ransacked" with the empty jewelry
boxes strewn across the floor. All of Johnston's jewelry, including irreplaceable family
heirlooms, was missing — as well as her Kindle and items from her husband's armoire.
The police officers who responded to the 911 call arrived quite quickly, and
around 3:00 p.m. that afternoon a detective came to the house and showed Johnston a
series of photographs from which she was able to identify Goodwin as the person whom
she earlier had chased out of her home.
Meanwhile, from the information Johnston and the contractor supplied initially,
the police tracked down and located the white Chevrolet. It was a rental car, leased to
Goodwin, and at 3:15 p.m. that afternoon it was parked in a stall behind an apartment
rented to Goodwin.
The police immediately obtained a search warrant, and in the search of Goodwin's
apartment later that same evening they found: a white T-shirt that matched the
description that Johnston had given of what the perpetrator had been wearing; and a car
rental agreement in Goodwin's name for the white Chevrolet. The police impounded the
vehicle that night, and a subsequent search disclosed personal items belonging to
Goodwin. Further investigation revealed: near the front porch of Johnston's home next
to the front door, a screen (on an open window) that was intact when Johnston left her
home on the date of the crime was torn later that same the day; the white T-shirt
5 contained evidence of Goodwin's DNA and plant material from a particular species of
plant (kangaroo paw, which has "hairs" that are "unique") located at the front entry of
Johnston's house; and a cellular telephone associated with Goodwin was at or near
Johnston's residence at the time of the crime.
With this evidence (and other evidence which we will discuss as necessary in the
Discussion, post), in July 2013, a jury found Goodwin guilty of one count of first degree
burglary of an inhabited dwelling while another person, other than an accomplice, was
present in the residence (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)) and one count of
first degree robbery while another person, other than an accomplice, was present in the
residence (§§ 211, 212.5, subd. (a)). As relevant to the issues Goodwin raises on appeal,
the court sentenced Goodwin to prison for consecutive terms of one year four months on
each of the two counts.
Goodwin timely appealed from the judgment.
B. SDC247172
In SDC247172, Goodwin pleaded guilty to five counts and was sentenced to 10
years eight months in prison. Because the only issue Goodwin raises in his appeal in this
case — i.e., the amount of the restitution fine — depends in part on "the seriousness of
the offense" (§ 1202.4, subd. (b)(1)), we present an abbreviated version of the facts
underlying the one count that resulted in the fine.4
4 Since there was no trial, we rely on the transcript from the preliminary hearing and the probation report in reciting the facts.
6 On June 15, 2013, "[f]earing for her safety," victim Jenna May fled through the
back door of her house, after hearing the door bell ringing and continuous knocking on
the front door and observing Goodwin using a crowbar to pry open the door. Safely at
her neighbor's, May called the police, who promptly arrived and arrested Goodwin after
he had left May's house and had jumped the fence into the neighbor's back yard.
Goodwin was in possession of burglary tools and the property he had taken from May's,
which included prescription narcotics.
The only count of the information relevant to this appeal is that for first degree
burglary.5 (§§ 459; 460, subd. (a).) At sentencing, in addition to imposing a prison term
and routine fines and assessments not at issue in this appeal, the court ordered Goodwin
to pay a restitution fine of $10,000 under section 1202.4, subdivision (b).
II.
DISCUSSION
Goodwin raises three arguments in his appeal from the judgment in SDC243102.
Two have to do with sentencing issues, and one has to do with an evidentiary ruling
during the trial. None has merit.
5 In addition, Goodwin pleaded guilty to one felony count of receiving stolen property (§ 496, subd. (a)); and three misdemeanor counts of vandalism (§ 594, subds. (a) & (b)), possession of burglary tools (§ 466) and resisting arrest (§ 148, subd. (a)(1)). He also admitted allegations of enhancements to the burglary offense (§§ 667.5, subd (c)(1), 12022.1, subd. (b)).
7 1. The Court Did Not Err Under Section 654 in Imposing Consecutive Sentences on the Counts for Burglary and Robbery
Once again, the court sentenced Goodwin to one year four months on the
conviction for burglary and a consecutive one year four months on the conviction for
robbery. Goodwin contends that section 654 precludes imposition of consecutive
sentences, because the offenses of burglary and robbery were committed in an individual
course of conduct with a single objective — to steal Johnston's personal property. The
People disagree, emphasizing that Goodwin's original intent was only to burglarize an
empty residence, whereas he formed a separate intent to commit robbery once Johnston
returned home and confronted him.
Section 654 provides in relevant part:
"(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
As such, it prohibits punishment for two crimes arising from a single indivisible course of
conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Thus, if all of the crimes are
" ' "incident to one objective," ' " then the defendant may receive only one punishment.
(People v. Capistrano (2014) 59 Cal.4th 830, 885; see Latimer, at p. 1208; Neal v. State
of California (1960) 55 Cal.2d 11, 19.) " 'Whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor.' " (People v. Correa (2012) 54 Cal.4th
331, 336; see Capistrano, at pp. 885-886.) " ' "The defendant's intent and objectives are
factual questions for the trial court; [to permit multiple punishments,] there must be
8 evidence to support [the] finding the defendant formed a separate intent and objective for
each offense for which he was sentenced." ' " (Capistrano, at p. 886.)
Where, as here, the trial court sentences a defendant to separate terms without an
express finding that the defendant entertained separate objectives, the trial court is
deemed to have made an implied finding that each offense had a separate objective.
(People v. Osband (1996) 13 Cal.4th 622, 730-731.) " ' " 'A trial court's implied finding
that a defendant harbored a separate intent and objective for each offense will be upheld
on appeal if it is supported by substantial evidence.' " ' " (People v. McKinzie (2012) 54
Cal.4th 1302, 1368.) Thus, under this standard, we review the trial court's implied
section 654 determination of a defendant's separate intent and objective "in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139,
1143.)
We believe People v. Dugas (1966) 242 Cal.App.2d 244 (Dugas) is factually
indistinguishable and, accordingly, controlling. In Dugas, the jury convicted the
defendant of burglary and robbery. (Id. at p. 246.) The evidence at trial supported the
trial court's implied findings that, at a time when the victim was not in his residence, the
defendant broke into and entered the residence with the intent to steal; that the burglary
(consisting of the breaking and entering with the intent to commit a theft) had taken place
by the time the victim returned home; and that the defendant formed the intent to commit
a robbery (consisting of the taking of property by force against a person's will from the
person's possession and immediate presence), as opposed to a theft (consisting of the
9 taking and keeping of another person's property without that person's consent), only after
the victim returned and entered his residence. (Id. at pp. 250-251.) Under such
circumstances, because "the two crimes cannot be deemed part of an indivisible
transaction incident to the same objective," the defendant's separate punishments for
burglary and for robbery did not violate section 654.6 (Dugas, at p. 251.)
Likewise, here, Goodwin's separate punishments for burglary and for robbery do
not violate section 654. The evidence from the trial supports the trial court's implied
finding that, for purposes of analyzing Goodwin's intent or objective, the burglary had
already been accomplished when Johnston returned home.7 (People v. Escobar (1992) 7
Cal.App.4th 1430, 1436 (Escobar) ["the crime of burglary is complete once the
perpetrator enters the premises with the requisite intent" to commit a felony].) The fact
that Goodwin likely tore the screen and entered through a window next to the front door
during the middle of the day supports an implied finding that Goodwin believed no one
was inside.8 The fact that Goodwin did not put anything in Johnston's suitcase after she
6 The result is no different where the victim is inside the residence at the time of the entering, but the defendant only learns of the victim's presence after the completion of the burglary and prior to the commission of the robbery. (People v. Green (1985) 166 Cal.App.3d 514, 518 (Green).) Under such circumstances, the sentencing restrictions of section 654 were not implicated, because "the burglary and robbery did not constitute an indivisible course of conduct." (Ibid.)
7 Indeed, in his opening brief, Goodwin concedes: "The crime of burglary was complete when [Goodwin] entered the residence."
8 Without conceding his knowledge at the time he entered the residence, Goodwin tells us that in the trial court, "It was undisputed Johnston was not present when the residence was entered . . . ." 10 confronted him, yet jewelry and other personal effects were missing immediately upon
Goodwin's flight, supports an implied finding that Goodwin had completed the theft by
the time Johnston returned home. Correspondingly, the fact that Johnston returned home
and surprised Goodwin supports an implied finding that Goodwin formulated his intent to
commit a robbery only after he had completed the theft.
In the language of the Dugas opinion, here "the evidence justifies the conclusion
that [Goodwin's] original intent was to burglarize an empty [house] and that the robbery
occurred as an afterthought when [Johnston] returned and surprised him in the
commission of the burglary." (Dugas, supra, 242 Cal.App.2d at p. 250.) Consistent with
the holding in Dugas, therefore, multiple punishments for the burglary and for the
robbery were proper here, because the "the two crimes did not comprise one indivisible
transaction." (Id. at p. 251.) Rather, the conviction for each crime here was based on a
distinct criminal intent and objective. (Ibid.)
Without mentioning Dugas or Green (the Attorney General's principal authorities
in support of the People's position), Goodwin suggests he only "harbored a single
objective — to commit a theft." Even if we assume that the record contains evidence
supporting the finding Goodwin asks us to reach, that is not the standard of review we
apply. Rather, our review is limited; we may not reverse the trial court's implied finding
that Goodwin had a separate intent and objective for each offense " 'if there is any
substantial evidence to support it.' " (People v. McCoy (1992) 9 Cal.App.4th 1578,
11 1585.) As we explained ante, the record here does contain substantial evidence that
supports the court's implied finding.
Accordingly, the court did not err in imposing consecutive sentences on the counts
for burglary and robbery.
2. For Purposes of Section 667.5, Johnston Was in the Residence During Goodwin's Commission of the Burglary
As part of its verdict on the burglary count, the jury found that Goodwin
committed the burglary "while another person, other than an accomplice, was present in
the residence within the meaning of [section 667.5, subdivision (c)(21)]." As such, for
certain purposes, the burglary is considered a " 'violent felony.' " (§ 667.5, subd. (c)(21).)
While not directly relevant to the issues on appeal — e.g., there is no issue regarding an
enhancement based on prior conviction for a violent felony under section 667.5 —
Goodwin tells us that this section 667.5, subdivision (c)(21) finding adversely affected
(and will continue to affect) his ability to receive custody credits toward his sentence.
(See § 2933.1, subd. (b); People v. Garcia (2004) 121 Cal.App.4th 271, 277 (Garcia).)
Goodwin argues on appeal that this violent felony finding cannot stand, because
the burglary was complete upon Goodwin's entry into the residence, yet it was
"undisputed Johnston was not present when the residence was entered" by Goodwin.9 In
response, the People argue that evidence of Johnston's presence in the residence at any
time until Goodwin left the residence is sufficient to support the finding that she "was
9 Likewise, however, Goodwin does not dispute that Johnston was present in the residence while he was in the bedroom, hallway and living room before he fled the residence. 12 present in the residence 'during the commission of the burglary' " for purposes of
section 665.7, subdivision (c)(21).
We begin by agreeing with Goodwin that, for purposes of substantive criminal
law, he committed a burglary at the time he entered Johnston's home with the intent to
steal. (§ 459 ["Every person who enters any house . . . with intent to commit grand or
petit larceny or any felony is guilty of burglary."]; Escobar, supra, 7 Cal.App.4th at
p. 1436 ["the crime of burglary is complete once the perpetrator enters the premises with
the requisite intent" to commit a felony].) However, that is not the end of the inquiry.
Just because the crime of burglary may have been complete for purposes of a conviction
"does not dictate the conclusion that the crime is complete for all purposes." (People v.
Walls (1978) 85 Cal.App.3d 447, 453 (Walls), italics added [burglary with sentence
enhancement under § 12022.7], quoted approvingly in People v. Elder (2014) 227
Cal.App.4th 411, 424 (Elder) [robbery with sentence enhancement under § 12022.7].)
As applicable here, section 2933.1, subdivision (a) limits the amount of "worktime
credit" for "any person who is convicted of a felony offense listed in subdivision (c) of
Section 667.5"; and section 667.5, subdivision (c) lists among the felony offenses "[a]ny
burglary of the first degree . . . wherein it is charged and proved that another person,
other than an accomplice, was present in the residence during the commission of the
burglary" (id., subd. (c)(21), italics added). " 'In considering the words of a statute, an
appellate court is required to read the enactment in the light of the objective sought to be
achieved by it as well as the evil sought to be averted.' " (Elder, supra, 227 Cal.App.4th
at p. 423.) While the mere list of violent felonies in section 667.5, subdivision (c) does
13 not suggest an objective sought to be achieved, our Legislature has told us that the evils
sought by be averted in the list are "society's condemnation for these extraordinary crimes
of violence against the person."10 (Stats. 2006, ch. 337, § 30, p. 2636.)
Given this statutory context, we have no difficulty concluding that, for purposes of
section 667.5, subdivision (c)(21), Johnston was "present in the residence during the
commission of the burglary" as found by the jury. (Ibid., italics added.) Consistent with
People v. Alvarado (2001) 87 Cal.App.4th 178, we hold that the phrase "during the
commission of the burglary" in section 667.5, subdivision (c)(21) "includes the period of
time that a burglar remains on the premises after entry and extends until the burglar has
reached a place of temporary safety." (Id. at p. 183 [§ 667.61, subds. (b) & (e)(2)
mandate indeterminate life terms for those who commit a rape "during the commission of
a burglary"].) That is because, "our courts have always recognized the concept that the
burglary continues after entry with the requisite intent, is effected." (Walls, supra, 85
Cal.App.3d at p. 453, italics added [sentence enhancement for use of a weapon and
commission of an assault during a burglary].)
We find further support in People v. Montoya (1994) 7 Cal.4th 1027, where, for
purposes of assessing aider and abettor liability, "a burglary is considered ongoing during
the time the perpetrator remains inside the structure" (id. at p. 1045); in People v. Miller
10 In looking at the specific application of the violent felony here, the objective sought to be achieved in section 2933.1 is "a legitimate policy decision by the Legislature to provide greater protection to the public from dangerous offenders who might otherwise be paroled at an earlier date." (Garcia, supra, 121 Cal.App.4th at p. 277.)
14 (1977) 18 Cal.3d 873, where, for purposes of sentence enhancement, a shooting was
considered "in the commission" of a burglary when a security guard was shot well after
defendants' entry to the jewelry store with the intent to commit a felony (id. at p. 882); in
Elder, supra, 227 Cal.App.4th at page 423, where, for purposes of sentence enhancement,
" 'the crime [of burglary] is not complete until the felon has won his way to a place of
temporary safety' " (quoting from People v. Johnson (1980) 104 Cal.App.3d 598, 608);
and in Walls, supra, 85 Cal.App.3d at page 453, where, for purposes of sentence
enhancement, the use of a weapon and commission of an assault were considered to take
place " 'in the commission' " of the burglary, even though defendants did not acquire the
weapon or assault the victim until after well entry with the intent to commit a felony,
because "it matters not whether injury was inflicted upon the occupant at the time the
burglar gained entry or after the entry was effected."
Accordingly, the court did not err in entering a judgment with the special verdict
finding that Goodwin committed the burglary while Johnston "was present in the
residence within the meaning of [section 667.5, subdivision (c)(21)]."
3. Goodwin Was Not Prejudiced by the Introduction into Evidence of His Prior Conviction
During trial, the court allowed the People to present evidence of an incident in
May 2005 following which Goodwin was convicted of felony commercial burglary.11 In
short, Goodwin and an accomplice stole approximately $900 worth of electronics from a
11 From what we can tell, the evidence was only of the incident and not of the later conviction.
15 K-Mart, and when the store security guard attempted to place him under arrest in the
parking lot, he swung at the guard, hit her in the face and ripped her shirt, causing her to
fall to the ground as Goodwin fled the scene.
Goodwin argues that the evidence of the prior incident was inadmissible under
Evidence Code section 1101, and that the error was prejudicial. The People do not
present any argument regarding the admissibility of the evidence of the K-Mart incident,
instead contending only that Goodwin did not meet his burden of establishing prejudice.
Because we agree that any potential error was harmless, we will assume without deciding
that evidence of the May 2005 incident at K-Mart was inadmissible.12
As Goodwin acknowledges, however, erroneous admission of evidence of a prior
crime does not automatically result in a reversal. Goodwin appropriately accepts that he
must also establish prejudice, which for this alleged error requires a showing of a
reasonable probability that "a result more favorable to defendant would have been
reached had the jury not been informed of the prior[ crime]. People v. Watson (1956) 46
Cal.2d 818, 836.)" (People v. Malone (1988) 47 Cal.3d 1, 17, 20-22 [evidence of
defendant's prior murder conviction]; see People v. Holloway (2004) 33 Cal.4th 96, 128
(Holloway).)
12 With exceptions that are irrelevant in light of our assumption, "evidence of a person's character or a trait of his or her character (whether in the form of . . . evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a); accord People v. Gray (2005) 37 Cal.4th 168, 202 [evidence of prior crime not admissible to show defendant's disposition to commit charged offense].)
16 Given this standard, any error in admitting evidence of the K-Mart incident was
not prejudicial.
On three separate occasions, Johnston positively identified Goodwin as the person
she encountered in her home: (1) within two hours of their meeting in Johnston's
hallway, Johnston identified Goodwin during a photographic lineup; (2) approximately
two months later, Johnston identified Goodwin immediately before and at the preliminary
hearing; and (3) at trial less than a year later, Johnston identified Goodwin in the
courtroom before the jury. Likewise, the contractor (who had confronted the perpetrator
as he left Johnston's house with the suitcase) identified Goodwin at trial as well.
In addition, within hours of the crime, the police recovered a white T-shirt from
Goodwin's apartment that (1) matched Johnston's description of the T-shirt worn by the
man in her home earlier that day; (2) contained Goodwin's DNA; and (3) had certain
plant material on it from a "pretty rare" species of plant, kangaroo paw. In this latter
regard, Johnston had kangaroo paw plants outside and in front of her home in the exact
location where the perpetrator had run as he left the home, and there were no kangaroo
paw plants in or around Goodwin's apartment building from which the police seized the
T-shirt later the same day.
Further, the People presented uncontroverted evidence tying Goodwin to the car
the perpetrator used in his getaway from Johnston's home. Johnston was directly behind
the car as it was being driven away, and she was able to give the police the car's make,
color and license plate number "immediately" after she ran back inside her house. Later
that afternoon, the police found the car parked in a stall in the rear of Goodwin's
17 apartment building. The police learned that Goodwin recently had rented the car, using
his name and the address of his apartment; and when they searched his apartment that
night, the police found the car rental receipt with Goodwin's name and telephone number
on it. In searching the car, the police also found personal items belonging to Goodwin,
including a day planner with Goodwin's name and telephone numbers.
Finally, a cellular telephone with a number connected to Goodwin13 was used
many times near Johnston's residence between 11:35 a.m. and 1:05 p.m. on the day of the
crimes. At 11:34 a.m. — approximately one and a half hours before Johnston returned
home to find the perpetrator — a call was placed on the phone from a location "right
near" Goodwin's address; a minute later there was another call placed on the phone from
a location "about a half mile from" Goodwin's address; at 12:01 p.m., a call was placed
on the phone from a location "approximately one mile from the crime scene . . . and
5.5 miles from Mr. Goodwin's residence"; shortly before the time Johnston returned
home, between 12:46 p.m. and 12:49 p.m., four calls were placed on the phone — three
from a location "just about 150 yards" from Johnston's residence and one from a location
"approximately one mile" from Johnston's residence; at 1:02 p.m., the phone received a
call (from one of the numbers called during the prior hour) when the phone was
"approximately one mile" from Johnston's residence; at 1:05 p.m. the phone received a
13 The personal information portion of Goodwin's day planner listed the telephone number as his. The rental agreement for the white Chevrolet getaway car was in Goodwin's name and disclosed this same telephone number. Finally, when Goodwin was arrested for the burglary and robbery, he provided this telephone number along with the other booking information.
18 call when the phone was "roughly about a mile" from Johnston's residence; and 25
minutes later a call was placed on the phone (to the number from which the immediately
preceding call was placed) from a location "approximately half a mile" from Goodwin's
residence.14 Based on the locations of this phone, the People's expert testified that his
"first indication" the phone had left the area around Johnston's house was the call the
phone received at 1:05 p.m. — which was approximately five minutes after Johnston had
returned home and found the perpetrator and two minutes after Johnston had called 911.
(Italics added.)
Goodwin argues that, "given the closeness of the case," "it is reasonably probable
a different result would have occurred had the evidence of the 2005 K-Mart incident been
excluded." We disagree that the case was close. First, we are not persuaded by
Goodwin's argument that the police did not find the items stolen from Johnston's home in
Goodwin's apartment or car. Johnston called 911 shortly after 1:00 p.m., the police did
not arrive at (and maintain surveillance of) Goodwin's apartment until almost 3:15 p.m.,
and the police did not search Goodwin's apartment or impound the white Chevrolet
getaway car until later that night — all of which gave Goodwin a significant amount of
time to hide or otherwise dispose of one suitcase and its contents. Second, we are not
persuaded by Goodwin's suggestion that Johnston's and the contractor's estimates of the
height of the perpetrator on the day of the crimes — as the perpetrator was running,
14 Later in the day, calls were placed on the phone from locations within four miles of Goodwin's apartment.
19 shoving and escaping, all in a matter of minutes — were materially inaccurate.15 At
most, their estimates of Goodwin's height were 7 percent off. In any event, both Johnston
and the contractor described other physical attributes of Goodwin; and Johnston picked
out Goodwin from a photo lineup just hours after the incident, Johnston identified
Goodwin at the preliminary hearing, and both Johnston and the contractor identified
Goodwin at trial. Finally, we are not convinced by Goodwin's reliance on the fact that
kangaroo paw plants may be commonly found in San Diego. The following evidence
was uncontested: the perpetrator ran through kangaroo paw plants near Johnston's door
as he escaped from Johnston's house; later the same day, the police recovered from
Goodwin's apartment a white T-shirt containing both Goodwin's DNA and residue
consistent with the kangaroo paw plants in Johnston's yard; and the white T-shirt, seized
the same day as the crimes, matched Johnston's description of what the perpetrator had
been wearing at her house.
Accordingly, given the overwhelming evidence of Goodwin's guilt of the crimes
charged, there is no reasonable probability that a verdict more favorable to him would
have been reached had the evidence of the 2005 K-Mart incident been excluded. (People
v. Watson, supra, 46 Cal.2d at pp. 835-837.) Thus, even assuming (without deciding)
that such evidence was inadmissible under Evidence Code section 1101, we do not
conclude that the admission of this evidence caused a miscarriage of justice requiring a
15 Johnston initially told the police the perpetrator was 6' 1" tall, later stating he was 6' 4"; at trial, the contractor told the police that the man in the getaway car was "around six feet" tall; and the probation report indicates Goodwin is 6' 6" tall.
20 reversal of the judgment. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); see
Holloway, supra, 33 Cal.4th at p. 128.)
In sentencing Goodwin following his plea of guilty to the charges of burglary and
receiving stolen property, the court ordered a section 1202.4 restitution fine of
$10,000.16 Section 1202.4 provides in relevant part:
"(a)(1) It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. [¶] . . . [¶] (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay . . . [¶] . . . [a] restitution fine in accordance with subdivision (b). . . . [¶]
"(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine . . . . [¶] (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 . . . three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000)[17] . . . . [¶] (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 imprisonment the
16 The court also ordered a section 1202.45 parole revocation fine of $10,000. Goodwin presents argument only as to the section 1202.4 restitution fine, not to the section 1202.45 parole revocation fine. By failing to present any argument or authority challenging the section 1202.45 parole revocation fine, Goodwin has forfeited any independent basis on which to object to it. (People v. Stanley (1995) 10 Cal.4th 764, 793 [legal argument without citation of authority may be deemed waived].)
17 Goodwin contends that, because he was convicted in 2013, the pre-2014 minimum amount is what should be considered. We disagree. The statutory language is clear; the minimum amount "shall not be less than" $300 "starting on January 1, 2014." (§ 1202.4, subd. (b)(1), italics added.) The statute does not mention the date of conviction.
21 defendant is ordered to serve, multiplied by the number of felony counts of which 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. . . .
"(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. . . . A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required."
Goodwin argues that the court abused its discretion in setting the amount of the fine at
$10,000 on the following grounds: (1) the court misapplied section 1202.4,
subdivision (b)'s formula for calculating the amount; (2) the court did not support its
decision by providing what Goodwin contends are required reasons or considerations for
setting the amount; and (3) the court did not consider the appropriate relevant factors, set
forth in subdivision (d) of section 1202.4, in setting the amount.
In response, the People contend: (1) Goodwin forfeited his claim regarding the
amount of the restitution fine, because he failed to object in the trial court; and, in any
event (2) the court did not abuse its discretion in setting the amount of the fine, because
the court complied with section 1202.4's requirements in determining and explaining the
amount of the fine.
22 We agree that Goodwin forfeited his claim by failing to object in the trial court
and, accordingly, do not reach his substantive arguments.
In both People v. Nelson (2011) 51 Cal.4th 198 (Nelson) and People v. Gamache
(2010) 48 Cal.4th 347 (Gamache), each defendant argued on appeal that the trial court
erred in imposing a $10,000 section 1202.4 restitution fine by failing to take into
consideration his ability to pay, as required by subdivision (d). (Nelson, at p. 227 &
fn. 22; Gamache, at p. 409.) In both Nelson and Gamache, our Supreme Court ruled
unequivocally that each defendant "forfeited this claim by failing to object at his
sentencing hearing." (Nelson, at p. 227; Gamache, at p. 409.) We find these authorities
dispositive of the issue here.
No doubt anticipating the People's argument, in his opening brief Goodwin argues
that his "failure to object to the trial court's imposition of the $10,000 restitution fine does
not result in the forfeiture of the issue on appeal," citing People v. Pacheco (2010) 187
Cal.App.4th 1392, 1397 (Pacheco), and People v. Kunitz (2004) 122 Cal.App.4th 652,
657 (Kunitz). We acknowledge that both Pacheco and Kunitz ruled that the defendant
had not forfeited his claim on appeal by failing to raise it in the trial court. (Pacheco, at
p. 1397; Kunitz, at p. 657.)
However, in Pacheco the court's comment regarding the failure to raise a claim in
the trial court had nothing to do with a section 1202.4 victim restitution fine; rather, the
defendant there claimed sentencing error related to a criminal justice administration fee
(Gov. Code, §§ 29550, subd. (c), 29550.2), a probation fee (§ 1203.1b) and an attorney
fee order (§ 987.8). (Pacheco, supra, 187 Cal.App.4th at p. 1397.) Moreover, with
23 regard to the Government Code section 29550.2 fee and the section 1203.1b fee, the
statement on which Goodwin relies in Pacheco — namely, that there is no need to object
in the trial court in order to preserve the issue on appeal (Pacheco, at p. 1397) — was
expressly disapproved in, respectively, People v. McCullough (2013) 56 Cal.4th 589,
597, 599 (McCullough) (Gov. Code, § 29550.2 booking fee), and People v. Trujillo
(2015) 60 Cal.4th 850, 858, and footnote 5 (Trujillo) (§ 1203.1b probation fee).18
Likewise, Kunitz is not helpful to Goodwin. Even though the restitution fines at
issue were the same as those in the present appeal, the issue on appeal in Kunitz was
whether sections 1202.4 and 1202.45 authorized restitution fines "to be payable jointly
and severally by both defendants." (Kunitz, supra, 122 Cal.App.4th at p. 655.) There,
the court ruled that, as a matter of law based on statutory interpretation, because neither
section 1202.4 nor section 1202.45 allowed a fine against more than one individual, a
restitution fine should be specific to a defendant. (Kunitz, at pp. 655-657 [both statutes
refer to "a person" or "the defendant" in the singular, distinguishing other instances where
the singular includes the plural].) The court then distinguished between an unauthorized
fine — where, as in Kunitz, "the statutes do not provide for imposition of a fine payable
jointly and severally by two or more defendants" — and an authorized but erroneous
fine. (Id. at p. 657.) As applicable here, Kunitz teaches that, because the fine was
statutorily unauthorized, the defendant did not forfeit appellate review by failing to
18 In their brief, the People point out that McCullough and Trujillo disapproved the statement in Pacheco on which Goodwin had relied in his opening brief. Ignoring this Supreme Court authority, Goodwin inappropriately continues to rely on Pacheco in his reply brief. 24 object in the trial court. (Ibid. at p. 657.) In contrast, here Goodwin's arguments are all
directed to the allegedly erroneous nature of an otherwise statutorily authorized fine of
$10,000 under section 1202.4.
Accordingly, by failing to object in the trial court, Goodwin forfeited appellate
review of his arguments related to the amount of the section 1202.4 restitution fine.
(Nelson, supra, 51 Cal.4th at p. 227; Gamache, supra, 48 Cal.4th at p. 409; see Kunitz,
supra, 122 Cal.App.4th at p. 657.)
DISPOSITION
The judgments in SDC243102 and SDC247172 are affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCINTYRE, J.