P. v. Miffin
Filed 7/11/13 P. v. Miffin CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
ERIC
W. MIFFIN,
Defendant and Appellant.
B242671
(Los Angeles County
Super. Ct. No. BA390431)
APPEAL from a judgment of the Superior Court of
County, Craig Richman, Judge.
Affirmed.
Michele A. Douglass, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Connie H. Kan, Deputy Attorneys
General, for Plaintiff and Respondent.
Eric W. Miffin appeals from the
judgment entered following his conviction by jury on three counts of
§ 459) and one count of receiving stolen property (Pen. Code, § 496,
subd. (a).)
title="">[1] On appeal, he challenges the sufficiency of
the evidence to support the receiving stolen property count. He also contends the evidence was
insufficient to support the finding of his ability to pay attorney fees. We conclude that the evidence is sufficient
to support the stolen property count and that appellant forfeited his challenge
to the imposition of attorney fees by failing to object in the trial
court. We therefore affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Prosecution Evidence
Burglary
Counts
Appellant’s fingerprints were found at
the scene of the following three residential burglaries.
On November 30, 2010, around 8:00
p.m., Lilian Romero returned to her home in Los Angeles after a three-hour
absence and found her front door and kitchen window open, broken furniture, and
several missing items, including $5,200 cash, a coin collection, and
jewelry.
On June 2, 2011, Omar Barrios and his father left
their home in Los Angeles around 7:00 p.m.
When Barrios returned around 11:00 p.m., there was a hole in the front door,
and a Sony stereo and money were missing from his father’s bedroom.
On July 25,
2010,
Isidoro Castelan left his home in Los Angeles around 11:00 a.m. and returned around 9:30 p.m.
When he returned, he found that his front door and window had been
broken. He discovered that a computer,
documents, jewelry, and money were missing.
Receiving
Stolen Property
On August 29,
2011, Jose
Linares, who was 15 years old at the time of trial, went out to eat with his
family. They left their home in Los Angeles around 8:00 p.m., locking the doors and windows, and
returned around 9:00 p.m. When they
returned, they found the home in disarray and saw that the security bars on his
bedroom window were open. The family’s
Sony PlayStation Portable (PSP) had been stolen.
Los Angeles Police Department
Detective Christopher Marsden arrested appellant on October 27,
2011. When Detective Marsden searched appellant’s
car, he found approximately 35 pawn shop receipts in the trunk of the car. Eleven of the receipts were from Charles
Jewelry. One pawn receipt showed that
appellant pawned a Sony PSP on August 31, 2011.
Detective Marsden went to the pawn shop, located the Sony PSP, and
discovered that it contained a photograph of Linares, depicting him holding a diploma
from his school.
Defense Evidence
Appellant presented no evidence.
Procedural Background
Appellant was charged in an amended
information with three counts of first degree residential burglary and one
count of receiving stolen property. It
was further alleged that appellant had served seven prior prison terms pursuant
to section 667.5, subdivision (b), and that he had suffered one strike for
purposes of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)) and one prior conviction of a serious felony under section 667,
subdivision (a)(1).
The jury found appellant guilty on all
four counts. Appellant admitted the
prior strike, and the prosecution chose not to proceed on the remaining
priors. The court granted appellant’s
the strike as to two burglary counts and the receiving stolen property count
(counts 2, 3, and 4), but denied it as to the remaining burglary count (count
1). The court sentenced appellant to a
total of 16 years 4 months.
DISCUSSION
Appellant contends that the evidence
is insufficient to sustain the receipt of stolen property count. He also contends that insufficient evidence
supports the finding of his ability to pay $110 in attorney fees.
I. Stolen
Property Count
“On appeal, an appellate court deciding
whether sufficient evidence supports a verdict must determine whether the
record contains substantial evidence – which we repeatedly have described as
evidence that is reasonable, credible, and of solid value – from which a
reasonable jury could find the accused guilty beyond a reasonable doubt. [Citation.]â€
(People v. Hovarter (2008) 44
Cal.4th 983, 996-997, italics deleted.)
“We resolve all conflicts in the
evidence and questions of credibility in favor of the verdict, and indulge
every reasonable inference the jury could draw from the evidence. [Citation.]
This standard applies whether direct or
It also applies when determining whether the evidence is sufficient to
sustain a jury finding on a gang enhancement.
[Citations.] Reversal is
unwarranted unless “‘upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].â€â€™ [Citation.]â€
(People v. Mendez (2010) 188 Cal.App.4th
47, 56.)
“Under section 496, subdivision (a),
the elements of receiving stolen property are (1) stolen property; (2)
knowledge that the property was stolen; and (3) possession of the stolen
property. [Citation.]†(People
v. King (2000) 81 Cal.App.4th 472, 476, fn. omitted.) Appellant contends that the evidence is
insufficient to support the finding that he knew the property was stolen. We disagree.
“‘[P]roof of knowing possession by a
defendant of recently stolen property raises a strong inference of the other
element of the crime: the defendant’s
knowledge of the tainted nature of the property. This inference is so substantial that only
“slight†additional corroborating evidence need be adduced in order to permit a
finding of guilty. [Citation.]’ [Citation.]â€
(People v. Reyes (1997) 52
Cal.App.4th 975, 985 (Reyes).)
There is no dispute that Linares’ Sony
PSP was stolen and that appellant pawned it only two days later. Thus, only slight additional corroborating
evidence is needed to support the conviction.
(Reyes, supra, 52 Cal.App.4th at pp. 984-985.)
Viewing the evidence in the light most
favorable to the judgment and drawing all reasonable inferences in favor of the
conviction, we have no trouble concluding that the evidence is sufficient to
sustain the finding that appellant knew the Sony PSP was stolen. The Sony PSP had a photograph of Linares
holding a middle school diploma. In
addition, there were approximately 35 pawn shop receipts in appellant’s car
when he was arrested, including the receipt for Linares’ Sony PSP. Finally, evidence appellant had committed
burglaries on three separate occasions tended to prove that he knew that the
Sony PSP he pawned was stolen.
Appellant argues that the evidence
supporting the burglary counts was not cross-admissible as to the receiving
stolen property count. His argument,
however, consists of only one sentence, and he does not support his claim with
any legal analysis or citation to the record.
It is therefore forfeited. “‘[I]t
is appellant’s burden to affirmatively show error. [Citation.]
To demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority and citations to facts in the record that
support the claim of error.
[Citations.]’ [Citation.] ‘Mere suggestions of error without supporting
argument or authority other than general abstract principles do not properly
present grounds for appellate review.’
[Citation.]†(
Cal.App.4th 1428, 1457.)
II.
At sentencing, the trial court imposed
a $110 attorney fee on appellant, pursuant to section 987.8. Under section 987.8, the court must make a
determination, either express or implied, that the defendant has the ability to
pay defense costs. (People v. Prescott (2013) 213 Cal.App.4th 1473, 1476;
Cal.App.4th 1406, 1421.) Appellant
contends that the imposition of the fee was erroneous because the trial court
did not hold a hearing or make an explicit finding regarding his ability to
pay.
Although appellant correctly points
out that the record does not indicate that the trial court made any findings
regarding his financial ability, he did not raise this contention below. Respondent concedes in its brief that
appellant did not forfeit his challenge to the sufficiency of the evidence to
support his ability to pay attorney fee, relying on People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco). However, after
briefing was complete in this case, the California Supreme Court disapproved
In Pacheco,
the defendant claimed on appeal that the trial court erroneously imposed
several fees, including an attorney fee under section 987.8, without
determining his ability to pay the fees.
Although he had not objected to the imposition of the fees in the
that he was not required to do so in order to assert his claim on appeal. (Pacheco,
supra, 187 Cal.App.4th at p.
1397.) Because the trial court did not
make a finding, either express or implied, about the defendant’s ability to pay
the fee, the court held that the order directing payment of attorney fees was
erroneous. (Id. at pp. 1398-1399.)
In McCullough,
the California Supreme Court disapproved Pacheco
and held that a defendant who failed to object to the imposition of a booking
fee under Government Code section 29550.2 had forfeited his right to challenge
it on appeal. (McCullough, supra, 56
Cal.4th at pp. 591, 599.) Similar to
section 987.8, Government Code section 29550.2, subdivision (a) requires the
court to determine a defendant’s ability to pay before ordering payment. (Id.
at pp. 592-593, 599.) The court reasoned
that the determination of a defendant’s ability to pay a fee was a factual
issue that required the development of the record below. (Id.
at p. 597.) A defendant who failed to
challenge the sufficiency of the evidence when the fee was imposed accordingly
did not have the right to raise it on appeal.
(Ibid.)
Similar to the imposition of a booking
fee at issue in McCullough, the
imposition of an attorney fee requires factual determinations regarding the
defendant’s ability to pay. We therefore
rely on McCullough to conclude that
appellant forfeited his right to challenge the fee by failing to raise it at
the time the fee was imposed.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code.
