People v. Hudson CA1/3 ( 2020 )

Filed 8/31/20 P. v. Hudson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A155873
v.
THEODORE SMITH HUDSON III, (Sonoma County
Defendant and Appellant. Super. Ct. No. SCR-696335-1)
Defendant Theodore Smith Hudson III appeals from a judgment after a
jury found him guilty of multiple counts of theft from an elder. He contends
that the trial court: (1) abused its discretion in excluding proposed
impeachment evidence; (2) improperly imposed fines, fees, and restitution
without determining his ability to pay them; and (3) failed to stay
punishment under Penal Code section 654.1
On counts 3 through 6, defendant was convicted of theft of properties
transferred by grant deed from the victim, Jane Doe, to defendant. On
count 3, defendant was sentenced to prison for a total of nine years (four
years plus consecutive five-year term for enhancement). On counts
4, 5, and 6, defendant received concurrent four-year sentences. We conclude
Unless otherwise indicated, all further section references will be to
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the Penal Code.
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that these concurrent sentences constitute multiple punishment proscribed
by section 654. Accordingly, we modify the sentences on counts 4, 5, and 6 as
set forth below and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief summary of some of the trial evidence, which
we set out to provide context to the claims raised on appeal.
Starting in 2009, defendant was hired by an elderly couple, Jane Doe
and Nick S., for intermittent work related to their personal residence and
commercial properties. Jane and Nick then began paying defendant a
monthly salary. Over the next several years, defendant’s role and
responsibilities expanded. For example, defendant assisted Nick with the
management of the commercial properties and drove the couple to medical
appointments.
Defendant attended to Nick as his health deteriorated around 2014.
According to Jane, defendant began threatening to quit and demanding
money and property from the couple. According to defendant, his conduct
was triggered by Jane’s refusal to get a caregiver for Nick and her
interference with defendant’s personal life. Jane testified she wrote in her
journal on January 21, 2015, that defendant “ ‘settled for $50,000’ ” and one
of the couple’s properties, in Cloverdale, California. She testified that
defendant made out a check to himself for $49,979.25 and brought it to her to
sign.
Nick died in February 2015. The next month, Jane signed a trust
providing that if defendant continued to care for Jane during her life, the
Cloverdale property would go to defendant. According to Jane, defendant
was unhappy with the trust because he would only get the property after her
death and he would have to prove he had taken good care of her. According
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to defendant, he felt that it was unfair that someone else could decide if he
got the property or not and that Jane could be put in a home, which would
prevent him from receiving the property. Jane testified that she revoked her
trust in September 2015 in response to defendant’s complaints.
Jane testified that she began adding defendant to her various bank
accounts, upon defendant’s assurances that he would never take any money
out. She testified that defendant also started asking her repeatedly to sign
over all of her commercial properties to him. In March 2016, defendant and
Jane signed the grant deeds transferring ownership of 10 properties,
including five properties in Sonoma County.
In May 2016, Jane signed a new will that left her entire estate to
defendant. Jane testified that she signed the will because she was being “put
against the wall” and “blackmailed” to leave everything to defendant.
In June 2016, defendant purchased a house. Defendant authorized
wire transfers from Jane’s bank accounts for the purchase. According to
Jane, she was “shocked” because defendant had previously promised that he
would not touch the money in her accounts. According to defendant, Jane
wanted him to use the money in those accounts to purchase the house.
The information charged defendant with 11 felony counts of theft from
an elder under section 368, subdivision (d) related to the $49,979.25 check
(count 1), the Cloverdale property (count 2), the other four Sonoma County
properties transferred by grant deeds (counts 3–6), and the wire transfers
(counts 7–11). The information specially alleged that the offenses set forth in
each count “are related felonies, a material element of which is fraud or
embezzlement, which involve a pattern of related felony conduct, and the
pattern of related felony conduct involves the taking of more than Five
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Hundred Thousand Dollars ($500,000)” under section 186.11, subdivision
(a)(2).
The jury found defendant guilty on counts 3 through 11 and found each
associated special allegation true. The trial court declared a mistrial on
counts 1 and 2 after the jury could not reach a verdict on those two counts.
The trial court sentenced defendant to a total of 10 years in prison: four
years (count 3) plus five years (consecutive term for count 3 enhancement),
plus one year (consecutive term for count 7). Concurrent four-year sentences
were imposed on counts 4 through 6, as well as counts 8 through 11.2 This
appeal followed.
DISCUSSION
Defendant makes three arguments on appeal. First, he argues that the
trial court abused its discretion in excluding proposed impeachment evidence.
Second, defendant argues that remand is required because the trial court
improperly imposed fines, fees, and restitution without determining his
ability to pay them. Third, he argues that the trial court failed to stay the
sentences on counts 4, 5, and 6 in violation of section 654. We address each
argument in turn.
I. EXCLUSION OF PROPOSED IMPEACHMENT EVIDENCE
Defendant argues that the trial court abused its discretion in excluding
proposed impeachment evidence allegedly showing that Jane and Nick had
committed tax fraud. We conclude that the trial court did not abuse its
discretion.
Defendant does not challenge the sentences for count 3, the count 3
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enhancement, or counts 7 through 11 through this appeal.
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A. Additional Facts
At trial, defendant sought to introduce tax returns submitted by Jane
and Nick allegedly showing tax fraud in order to impeach Jane’s credibility.
The prosecutor stated that defendant’s counsel gave her the documents after
the trial started. The trial court excluded the documents, finding that the
prosecutor was “never given notice that there was any question concerning
the validity” of the tax returns and, thus, the documents should not be
allowed in. The trial court also found that the validity of the tax returns was
“basically tangential and collateral and borderline irrelevant.” The trial
court explained that defendant could testify regarding his participation in the
preparation of tax documents and that evidence had already come in through
testimony by prosecution witness Richard Torkelson, an accountant who
testified regarding “some of the discounting of the properties for tax
purposes.” In the trial, defendant testified that he engaged in tax fraud in
writing out the $49,979.25 check to himself but that “Miss Doe made [him] do
it.”
On appeal, defendant argues that the trial court abused its discretion
in excluding the tax returns on both stated grounds: defendant’s untimely
disclosure of the returns and their lack of relevance. Neither argument is
persuasive.
As to the issue of timeliness, section 1054.3, subdivision (a)(2) provides
that a defendant and his or her attorney shall disclose to the prosecuting
attorney “[a]ny real evidence which the defendant intends to offer in evidence
at the trial.” Section 1054.7, paragraph 1 requires that such disclosures be
made “at least 30 days prior to the trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred.”
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Defendant offers no argument that the good cause exception applies
and admits, “The record arguably shows that [the] disclosure was not timely.”
Instead, he argues that the prosecutor forfeited her objection by “not raising
the purported late discovery issue when it arose” and the trial court’s strict
application of the timely disclosure rule “ ‘offended’ ” defendant’s
fundamental due process right to a fair trial. We disagree. The trial court
exercised its discretion to exclude the tax returns upon the prosecutor’s
objection in the trial, and such “proper exercise of a trial court’s discretion
under section 1054.7 does not violate a criminal defendant’s confrontation or
due process rights.” (People v. Thompson (2016) 1 Cal. 5th 1043, 1105.)
As to the issue of relevance, the trial court has broad discretion under
Evidence Code section 352 to determine whether impeachment evidence is
subject to exclusion. (People v. Clark (2011) 52 Cal. 4th 856, 931–932.) We
review such an exclusion of evidence under an abuse of discretion standard.
(People v. Holloway (2004) 33 Cal. 4th 96, 134.) “Where, as here, a
discretionary power is statutorily vested in the trial court, its exercise of that
discretion ‘must not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues
(1994) 8 Cal. 4th 1060, 1124–1125, quoting People v. Jordan (1986) 42 Cal. 3d
308, 316.) We agree with the trial court that the proffered tax returns were
“basically tangential and collateral and borderline irrelevant.” The defense
did not establish that Jane had any participation in the preparation of the
tax returns, let alone knowledge of their contents.
Even assuming that the exclusion of the tax returns was erroneous, we
reject defendant’s argument that such error was so prejudicial as to violate
his constitutional rights or otherwise render his trial fundamentally unfair.
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As the California Supreme Court explained, as long as the excluded evidence
“would not ‘have produced “a significantly different impression of [the
witness’s] credibility” ’ ” the confrontation clause and related constitutional
guarantees do not limit the trial court’s discretion in this regard. (People v.
Harris (2008) 43 Cal. 4th 1269, 1292, quoting People v. Frye (1998) 18 Cal. 4th
894, 946.) Here, we conclude that the tax returns would not have created a
significantly different impression of Jane’s credibility. This is particularly
true because the trial court permitted defendant to testify that he engaged in
tax fraud at Jane’s instruction and evidence had already come in through
testimony by Torkelson regarding discounting of the properties for tax
purposes.
In sum, we conclude that the trial court did not abuse its discretion in
excluding the tax return documents as proposed impeachment evidence.
II. IMPOSITION OF FINES, FEES, AND RESTITUTION
Defendant argues that remand is required because the trial court failed
to determine defendant’s ability to pay before imposing fines, fees, and
restitution. Defendant relies on People v. Dueñas (2019) 30 Cal. App. 5th 1157
(Dueñas). We conclude that defendant forfeited the argument.
A. Additional Facts
At the October 5, 2018 sentencing hearing, the trial court ordered
defendant to pay a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)); a
$10,000 parole revocation restitution fine (id., § 1202.45), suspended unless
parole is revoked; a $360 court security fee (id., § 1465.8); and a $270
criminal conviction fee (Gov. Code, § 70373). On October 18, 2018, the court
ordered defendant to pay $883,992.30 in direct restitution to Jane’s estate.
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B. Analysis
Defendant concedes that his trial counsel did not object to the
imposition of fines, fees, and restitution, let alone raise any objection based
on defendant’s ability to pay. A timely objection below, however, was
required to preserve this claim. (See People v. Frandsen (2019) 33
Cal. App. 5th 1126, 1153 (Frandsen) [concluding that the defendant forfeited
challenge where his trial counsel failed to object to assessments or restitution
fine at sentencing]; People v. Trujillo (2015) 60 Cal. 4th 850, 859 [explaining
that constitutional nature of the defendant’s claim regarding his ability to
pay did not justify a deviation from the forfeiture rule].)
Defendant fails to show an applicable exception to the doctrine of
forfeiture. We disagree with defendant’s argument that Dueñas was an
unforeseen change in the law. As explained in Frandsen, “Dueñas was
foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied ‘the
Griffin–Antazo–Bearden analysis,’ ” flowing from cases Griffin v. Illinois
(1956) 351 U.S. 12, In re Antazo (1970) 3 Cal. 3d 100, and Bearden v. Georgia
(1983) 461 U.S. 660. (Frandsen, supra, 33 Cal.App.5th at p. 1154, quoting
Dueñas, supra, 30 Cal.App.5th at p. 1168.) Dueñas likewise observed: “ ‘The
principle that a punitive award must be considered in light of the defendant’s
financial condition is ancient.’ ” (Dueñas, at p. 1171.) Accordingly, “Dueñas
applied law that was old, not new.” (Frandsen, at p. 1155.)
We also disagree with defendant’s argument that his trial counsel’s
failure to object was ineffective assistance of counsel. The test for ineffective
assistance of counsel requires a criminal defendant to establish both that his
or her counsel’s performance was deficient and that he or she suffered
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “Judicial
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scrutiny of counsel’s performance must be highly deferential.” (Id. at p. 689.)
Defendant offers no evidence to satisfy either prong of the test.
Even assuming there was no forfeiture, we would reject defendant’s
claim. As to the $10,000 restitution fine, $360 court security fee, and $270
criminal conviction fee, courts have strongly criticized the substantive
holding in Dueñas. (See, e.g., People v. Hicks (2019) 40 Cal. App. 5th 320, 326–
329, review granted Nov. 26, 2019, S258946.) We need not offer our own
opinion because even if the holding in Dueñas was correct, we would
conclude, on this record, that the error was harmless beyond a reasonable
doubt. (People v. Johnson (2019) 35 Cal. App. 5th 134, 139–140.) A
defendant’s ability to pay is not limited to his or her present financial
situation but can also be based on his or her future ability to earn prison
wages and money after release from custody. (People v. Hennessey (1995) 37
Cal. App. 4th 1830, 1837.) Here, the record shows defendant was 54 years old
at the time of sentencing, had worked as a mason for 25 years, and had
performed home repair and landscaping work for Jane and Nick for many
years. Defendant will be serving time in prison and has the capacity to earn
both during that time and after his release.
As to the $883,992.30 in direct restitution to Jane’s estate, it is
fundamentally different from the fines and fees. As Dueñas explains,
California law provides for two types of restitution: (1) direct restitution to
the victim, which is based on the victim’s loss and is paid to the victim to
compensate him or her for such loss; and (2) a restitution fine, which is set by
the court and paid into a statewide victim compensation fund. (Dueñas,
supra, 30 Cal.App.5th at p. 1169.) Moreover, section 1202.4, subdivision (g)
expressly prohibits the consideration of a defendant’s ability to pay in
determining the amount of a restitution order to the victim. Defendant cites
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no cases that extend the holding in Dueñas to direct victim restitution, and
we decline to do so here.
In sum, we reject defendant’s Dueñas claim.
III. MULTIPLE PUNISHMENT UNDER SECTION 654
Defendant argues that the trial court should have stayed punishment
on counts 4, 5, and 6 pursuant to section 654. The People concede the merit
of this argument. We agree.
A. Additional Facts
Defendant was convicted of four felony counts (counts 3–6) of theft from
an elder related to four Sonoma County properties transferred by grant deeds
in March 2016. At the sentencing hearing, the prosecutor stated, “We think
654 applies to counts 3 through 6,” and counts “4, 5, and 6 should be stayed.”
On count 3, the trial court sentenced defendant to nine years in prison: four
years plus a consecutive five-year term for the enhancement. On counts
4 through 6, instead of staying the sentences as the prosecutor recommended,
the trial court imposed concurrent four-year sentences.
B. Analysis
Section 654, subdivision (a) provides in relevant part: “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.” In other words, section 654 proscribes
multiple punishment for crimes arising from a single act. (People v. Harrison
(1989) 48 Cal. 3d 321, 335 (Harrison).) This statutory protection has also
been extended to proscribe punishment for multiple crimes arising from an
indivisible course of conduct. (Ibid.) Here, defendant argues that the
transfer of the four properties arose from an indivisible course of conduct.
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To determine whether a course of conduct is indivisible, we look at the
“defendant’s intent and objective, not the temporal proximity of his
offenses . . . .” (Harrison, supra, 48 Cal.3d at p. 335.) “[I]f all of the offenses
were merely incidental to, or were the means of accomplishing or facilitating
one objective, defendant may be found to have harbored a single intent and
therefore may be punished only once.” (Ibid.) “If, on the other hand,
defendant harbored ‘multiple criminal objectives,’ which were independent of
and not merely incidental to each other, he may be punished for each
statutory violation committed in pursuit of each objective, ‘even though the
violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (Ibid., quoting People v. Beamon (1973) 8 Cal. 3d 625,
639.) Where the relevant facts are conceded or undisputed, this is a question
of law that we review de novo. (Harrison, at p. 335.)
Here, the People concede that defendant “stole all of the commercial
properties in question at the same time, as part of a common plan or scheme
to deprive [Jane] of all of her property.” Jane testified that prior to the
transfer, defendant asked her repeatedly to sign over all of her commercial
properties to him. When asked what she expected would happen once the
grant deeds were signed, Jane testified that defendant explained to her “over
and over again how he would, if he had the property, how he would run it,
how he would continue to run it, and how it would all work out perfect.”
Defendant’s indivisible course of conduct is supported by the jury verdict,
finding that the offenses “are related felonies” and “involve a pattern of
related felony conduct . . . .” Based on the undisputed evidence, we conclude
that section 654 proscribes multiple punishment for counts 3 through 6.
The trial court’s imposition of concurrent sentences for counts
4, 5, and 6 does not avoid this issue because a defendant is deemed to be
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subjected to the term of all concurrent sentences, even though they are
served simultaneously. (People v. Jones (2012) 54 Cal. 4th 350, 353.)
“Instead, the accepted ‘procedure is to sentence defendant for each count and
stay execution of sentence on certain of the convictions to which section 654 is
applicable.’ ” (Ibid., quoting People v. Miller (1977) 18 Cal. 3d 873, 886.)
While defendant requests remand for resentencing to correct this
section 654 error, the People ask this court to stay the sentences. An
appellate court has the discretion to modify a judgment to stay sentences that
should have been stayed. (See § 1260 [appellate court may reverse, affirm, or
modify a judgment, or may remand for further proceedings “as may be just
under the circumstances”].) In People v. Alford (2010) 180 Cal. App. 4th 1463,
1473, the appellate court exercised its discretion to modify a judgment where
a new sentencing hearing would not have changed the defendant’s actual
prison time, and thus the “futility and expense” of remand “militate[d]
against it.” The same reasoning applies here: A new sentencing hearing to
stay the concurrent sentences for counts 4, 5, and 6 would consume judicial
resources without changing defendant’s prison time. Accordingly, we will
exercise our discretion to modify the judgment to reflect that defendant’s
concurrent sentences for counts 4, 5, and 6 are stayed.
DISPOSITION
The concurrent sentences on counts 4, 5, and 6 are stayed. The trial
court is directed to forward to the Department of Corrections and
Rehabilitation a new abstract of judgment that reflects the above
modification. As modified, the judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Petrou, J.
A155873/People v. Theodore Smith Hudson III
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