Filed 2/9/22 P. v. Hounihan CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This is an appeal from judgment after a jury convicted defendant Jason Scott Hounihan of one count of burglary and two counts of felony vandalism.[1] The trial court sentenced defendant to a six-year prison term and ordered him to pay a total of $12,262.33 in victim restitution. Defendant challenges the judgment on grounds of ineffective assistance from counsel in failing to request CALCRIM No. 333, which concerns lay opinion testimony; sentencing error in failing to stay execution of sentence as to each vandalism count; and due process error in refusing his request for a postsentencing restitution hearing. We reverse and remand to the trial court to address the sentencing error and failure to hold a restitution hearing. Otherwise, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2019, an information was filed charging defendant with one felony count of burglary of Visalia Mall and/or Kay Jewelers (Pen. Code, § 459; count 1),[2] one felony count of vandalism with over $400 in damage to Visalia Mall (§ 594, subd. (a); count 2), and one felony count of vandalism with over $400 in damage to Kay Jewelers (§ 594, subd. (a); count 3). It was further alleged defendant had one prior violent felony strike conviction (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), and had served three prior prison terms (§ 667.5, subd. (b)).

Trial began in June 2019, during which the following evidence was presented. On March 24, 2019, about 7:00 a.m., a security guard at Visalia Mall discovered the glass doors of the south mall entrance were broken and the metal bars in front of Kay Jewelers were missing a rung. An interior camera facing the south entrance captured video footage of the break-in. The security guard contacted the police and turned over the video footage.

This video footage showed an individual breaking the middle of three sets of double doors at the south mall entrance and then walking toward Kay Jewelers, located about 50 yards inside. The individual appeared to be a White male, approximately age 40, dressed in khaki pants, a tan striped sweater, white shoes and a beanie. About three minutes later, the individual left the mall through the same broken doors.

About 7:09 a.m., Officer Chavez responded to the burglary report and took photographs of the damage. Her investigation led to the discovery of a plastic bag on the ground outside the south entrance and a sledgehammer lying on the ground in a pile of glass next to a shattered display case inside Kay Jewelers. Officer Chavez was unable to recover fingerprints from these two items.

Kay Jewelers store manager Laura N. arrived at the store early that morning and spoke with Officer Chavez about the damage and items taken during the burglary. Laura reported that the shattered display case had contained rings, pendants and bracelets from the Emmy London collection. Based on her formal audit of the missing merchandise, Laura reported that a total of 19 pieces of jewelry worth $10,492 was stolen during the burglary. Laura arranged for the broken display case to be replaced and the damaged metal screen to be repaired.

On March 26, 2019, Detective Dowling reviewed the video footage from Visalia Mall’s security camera and believed he recognized the burglar as defendant. Detective Dowling had had multiple prior personal contacts with defendant. The following day, the police received a tip that defendant was at a local park. Detective Dowling responded to the park and observed that defendant was wearing the same tan pants and white shoes with a “swoosh” symbol as the individual captured by the security camera. Detective Dowling had previously seen defendant both with and without a goatee.

When Detective Dowling questioned him, defendant denied being at Visalia Mall on March 24, 2019. Defendant insisted he performed chainsaw work all day on March 24 at the residence of his friend Mario F. Detective Dowling responded, “ ‘You got tattoos on your face, dude, that’s very identifiable.’ ” A photo taken of defendant a few days later, when he was booked for these crimes, shows a small tattoo above his left eye.

Police later contacted defendant’s friend Mario, who works for a tree servicing company owned by his brother. Mario acknowledged knowing defendant “throughout the years” but stated that defendant never worked for his brother doing chainsaw work and was not at his house on March 24, 2019. Mario did recall seeing defendant later that week.

The general manager of The Glass Shop, a commercial and residential glass business, testified regarding the cost of Kay Jewelers’ repairs necessitated by the burglary. The Glass Shop sent an installer to replace the display case and laminated safety glass, for which it charged Kay Jewelers $997.

Visalia Mall’s operations manager testified regarding the repairs made to the broken entrance doors. The total amount of damage sustained by the mall exceeded $400. This amount included $144 for the cost of the maintenance worker’s time and $305 charged by Tulare Glass to replace the glass door panel.

On June 19, 2019, the jury found defendant guilty on all counts. The trial court then found true the prior strike and prior prison term allegations.

On August 7, 2019, the court sentenced defendant to six years in prison as follows: the upper term of three years on count 1 (burglary), doubled to six years pursuant to section 1170.12, subdivision (c)(1); and the upper term of three years, to be served concurrently, on counts 2 and 3 (vandalism), also doubled to six years pursuant to section 1170.12, subdivision (c)(1). The court then imposed various fines, fees and assessments, and ordered defendant to pay victim restitution in the amounts of $449.78 to Visalia Mall and $11,812.55 to Kay Jewelers. This timely appeal followed.

DISCUSSION

Defendant argues: (1) his trial counsel rendered ineffective assistance by failing to request CALCRIM No. 333, the standard instruction on lay opinion testimony; (2) the trial court violated section 654 by failing to stay execution of his sentences on counts 2 and 3; and (3) his due process rights were violated by the court’s refusal to grant him a restitution hearing.

1. Failure to request CALCRIM No. 333 did not constitute ineffective assistance from counsel.

Defendant contends his right to effective assistance of counsel was violated when his attorney failed to request CALCRIM No. 333 (lay opinion testimony). Defendant reasons that the instruction was needed to aid the jury’s consideration of Detective Dowling’s testimony that he was the suspect seen breaking into the mall in video footage captured by the security camera.

To prevail on a claim of ineffective assistance of counsel, the “defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) “Prejudice” in this context occurs only where defense counsel’s deficient performance “ ‘so undermined the proper functioning of the adversarial process’ ” that the outcome cannot be deemed reliable. (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).)

In applying this standard, the defendant must overcome a strong presumption that counsel’s conduct was sound legal strategy or otherwise within the wide range of reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) “Defendant’s burden is difficult to carry on direct appeal, as we have observed: ‘ “Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.” ’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 437 (Lucas).) Moreover, if the “defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Kipp, supra, 18 Cal.4th at p. 366.)

Defendant implicitly concedes the record does not disclose why his counsel failed to request CALCRIM No. 333. Accordingly, we reverse only if there is no rational tactical reason for his counsel’s omission. (Lucas, supra, 12 Cal.4th at p. 437.) This standard is not met in this case.

A lay witness’s opinion testimony is admissible if it is rationally based on the witness’s perception and will assist the jury to a clear understanding of the witness’s testimony. (Evid. Code, § 800.) The identity of a person is a proper subject of a lay witness’s opinion testimony. (People v. Perry (1976) 60 Cal.App.3d 608, 612; People v. Mixon (1982) 129 Cal.App.3d 118, 127.) “Court of Appeal decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs.” (People v. Leon (2015) 61 Cal.4th 569, 601.)

The issue here is whether, after the court admitted Detective Dowling’s lay opinion testimony on defendant’s identity, his attorney had no valid professional excuse for failing to request CALCRIM No. 333. This instruction would have advised that the jury could disregard all or any part of Detective Dowling’s opinion that it found unbelievable, unreasonable, or unsupported by the evidence.[3] (CALCRIM No. 333.)

We conclude defense counsel was not ineffective in failing to request CALCRIM No. 333 because tactical reasons exist for counsel’s decision. (Lucas, supra, 12 Cal.4th at p. 437.) First, defense counsel effectively argued to the jury there were several grounds for questioning Detective Dowling’s opinion that defendant was the man visible in the security camera footage. Counsel argued, for example, that the jurors themselves viewed the footage and were capable of assessing for themselves whether the individual resembled defendant and whether the footage was of sufficient quality to permit a positive identification. In the context of these arguments, defense counsel could have reasonably concluded CALCRIM No. 333 was unnecessary because the trial court gave a similar instruction, CALCRIM No. 226. The latter instruction advised the jury to use its common sense and experience to decide whether to accept, discount or totally reject a lay witness’s testimony. Further, similarly to CALCRIM No. 333, the version of CALCRIM No. 226 read at trial instructed the jury to “consider anything that reasonably tends to prove or disprove the truth or accuracy of that [witness’s] testimony,” including how well the witness could see, hear or otherwise perceive the matter about which he or she testified; the witness’s ability to remember and describe the matter; his or her behavior while testifying; any potential bias, prejudice or personal relationship that could have impacted his or her testimony; and the reasonableness of the testimony in light of all other evidence in the case. (CALCRIM No. 226.) Thus, contrary to defendant’s suggestion, the jury was not left without guidance on how to consider Dowling’s lay opinion.

In any event, as mentioned, the Strickland standard has two prongs: deficient performance by counsel and prejudice. (People v. Kipp, supra, 18 Cal.4th at p. 366.) On this record, even assuming for the sake of argument defense counsel performed deficiently, we would find no prejudice. We presume the jury understood and followed CALCRIM No. 226 and any other relevant instructions when considering Detective Dowling’s opinion. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853.) Thus, while defendant may be correct “CALCRIM No. 333 would have informed the jurors they could disregard [Detective] Dowling’s opinion, give it little or no weight, and/or find his opinion incorrect,” he ignores the fact that the jurors received the same guidance from CALCRIM No. 226. Accordingly, any error in the failure to request CALCRIM No. 333 was harmless. (Strickland, supra, 466 U.S. at p. 686.)

2. Failure to stay execution of sentence on the vandalism counts was error under section 654.

Section 654 generally prohibits multiple punishments for a single course of conduct.[4] (§ 654.) Defendant argues, and the People concede, the trial court violated this statute by failing to stay execution of the concurrent three-year sentences[5] on each of the two felony vandalism counts. The trial court reasoned that defendant’s acts of vandalism constituted separate criminal acts from the burglary, taking him outside the scope of section 654. The parties are correct that the trial court erred.

Where a defendant engaged in a course of conduct involving several acts, section 654’s bar on multiple punishments does not apply if the defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . .” (People v. Beamon (1973) 8 Cal.3d 625, 639; People v. Corpening (2016) 2 Cal.5th 307, 311.) Section 654’s bar on multiple punishments is also inapplicable where the defendant’s course of conduct involved acts of violence against multiple victims. (People v. Hall (2000) 83 Cal.App.4th 1084, 1089.)

Here, defendant harbored one criminal objective when breaking and entering into Visalia Mall and Kay Jewelers, breaking into the display case, and stealing jewelry. Further, when engaging in this course of conduct, defendant did not commit any acts of violence against individuals that would take him outside the scope of section 654. Rather, he committed property crimes against multiple victims. As such, pursuant to section 654, defendant was entitled to a stay of execution of the sentences imposed on counts 2 and 3. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1291 [“the multiple-victim exception to section 654 does not apply because vandalism is not a crime of violence against a person”].) Accordingly, we reverse and remand for resentencing on this basis. (People v. Correa (2012) 54 Cal.4th 331, 337 [when a defendant is the subject of multiple convictions, yet “section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited”].)

3. Failure to grant a restitution hearing was error.

Last, defendant contends the trial court violated his due process rights by denying the request he made at the time of sentencing for a restitution hearing. The trial court reasoned, “[Y]ou did have a restitution hearing because the restitution hearing consists of the victims testifying as to the amount of loss, which was done during the trial. So the restitution hearing did happen.”

“[W]hen a defendant is convicted of a crime involving a victim who ‘has suffered economic loss as a result of defendant’s conduct’ (Pen. Code, § 1202.4, subd. (f)), the court must require the defendant to pay full restitution directly to the victim or victims of the crime ‘unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.’ (Id., subd. (g).)” (People v. Giordano (2007) 42 Cal.4th 644, 651–652 (Giordano).) A “ ‘defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.’ ([Pen. Code, § 1202.4], subd. (f)(1).)” (Giordano, supra, at p. 652.)

“ ‘The scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited . . . .’ ” (People v. Prosser (2007) 157 Cal.App.4th 682, 692 (Prosser).) “[N]umerous courts have held that restitution hearings require fewer due process protections than civil hearings or criminal hearings of guilt. [Citations.] Courts have premised this conclusion on the understanding that restitution hearings are sentencing hearings. [Citations.]” (Giordano, supra, 42 Cal.4th at p. 662, fn. 6.) As such, “ ‘ “a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.]” ’ ” (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.)

Thus, a defendant’s due process rights are protected so long as he or she has “ ‘ “ ‘notice of the amount of restitution claimed . . . , and . . . has an opportunity to challenge the figures at the sentencing hearing.’ ” [Citations.]’ [Citations.]” (Prosser, supra, 157 Cal.App.4th at p. 692.) However, a violation of a defendant’s due process rights occurs when “the [restitution] hearing procedures are fundamentally unfair.” (People v. Cain (2000) 82 Cal.App.4th 81, 87.) In other words, “defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.” (People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550.)

“We review procedural due process claims de novo because ‘the ultimate determination of procedural fairness amounts to a question of law.’ [Citation.]” (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241.)

Applying these principles here, we agree with defendant his due process rights were violated by the trial court’s denial of his request for a restitution hearing. The court reasoned that multiple witnesses, including Visalia Mall’s operations manager and Kay Jewelers’s store manager, testified at trial regarding the amount of damages their employers sustained, and that defense counsel had ample opportunity to challenge their loss calculations. However, at trial, defense counsel denied defendant committed the burglary and asserted an alibi as his primary defense. The testimony from the prosecution’s witnesses regarding the victims’ losses was wholly irrelevant to that defense. Moreover, by focusing on the amount of loss to the victims at trial, defense counsel risked weakening or undermining his defense. At bare minimum, counsel risked confusing the jury by putting unnecessary emphasis on the victims’ losses rather than defendant’s alleged absence from the crime scene.

Moreover, at trial, the prosecution offered no documentary evidence such as invoices or receipts to support the witnesses’ testimony regarding the amount of property damage and repair costs suffered by the victims. After trial, the prosecution submitted this documentary evidence for the first time at the sentencing hearing. The probation department subsequently recommended in its sentencing report that the court leave open the issue of victim restitution until after sentencing. Nonetheless, when defendant asked at sentencing for a separate restitution hearing to contest the claimed loss amounts, the trial court refused. In doing so, the court deprived defendant of a fundamentally fair process for determining how much he actually owes in victim restitution. The law is clear that “ ‘[w]hatever the specific procedural safeguards required at a sentencing hearing concerning restitution, fundamental fairness must be assured. . . . [Citations.]’ A defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.” (People v. Sandoval, supra, 206 Cal.App.3d at p. 1550.) Reversal of the court’s restitution order is therefore required.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with instructions to (1) stay execution of the sentences imposed on counts 2 and 3 and (2) hold a restitution hearing pursuant to section 1202.4, subdivision (f). In all other regards the judgment is affirmed.

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Jackson, P. J.

WE CONCUR:

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Simons, J.

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Burns, J.

A164272, F079776/People v. Jason Scott Hounihan

[1] This matter was transferred by California Supreme Court order on December 20, 2021, from the Fifth Appellate District (appeal No. F079776) to the First Appellate District (appeal No. A164272).

[2] Unless otherwise stated, all statutory citations are to the Penal Code.

[3] CALCRIM No. 333 instructs: “(A witness/Witnesses)[, who (was/were) not testifying as [an] expert[s],] gave (his/her/their) opinion[s] during the trial. You may but are not required to accept (that/those) opinion[s] as true or correct. You may give the opinion[s] whatever weight you think appropriate. Consider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”

[4] The version of section 654 in effect at the time of trial provided: “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.” (§ 654, former subd. (a), amended by Stats. 1997, ch. 410, § 1, pp. 2752–2753.) Section 654 was amended effective January 1, 2022. (Stats. 2021, ch. 441, § 1.)

[5] These three-year sentences were doubled to six years pursuant to section 1170.12, subdivision (c)(1).