Filed 5/21/14 P. v. Ward CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135970
v.
SHELTON J. WARD,                                                     (Contra Costa County
                                                                     Super. Ct. No. 51112879)
         Defendant and Appellant.

                                                INTRODUCTION
         A jury convicted defendant Shelton Ward of residential burglary. The prosecution
theory was that defendant helped Darrian Shafer break into a house through a downstairs
window facing the backyard while the homeowner was upstairs, looking down on the
intruders. Defendant did not testify at trial, but Shafer’s testimony suggested defendant
did not share his burglarious intent, or help him commit the burglary. Instead, defendant
tried to dissuade him. On appeal defendant contends the court erroneously excluded
Shafer’s testimony regarding statements defendant made to him expressing his
misgivings about the burglary and erroneously admitted a prior felony juvenile
adjudication to impeach defendant’s nonverbal assertive conduct of tugging at Shafer’s
shirt. He also asserts the trial court misunderstood the scope of its discretion in using the
statutory formula to assess the mandatory restitution fine. We affirm.
                               STATEMENT OF THE CASE
         Defendant was charged by information with a residential burglary in which a
nonparticipant was present, a violent felony. (Pen. Code, §§ 459, 460, subd. (a), 667.5,
subd. (c)(21).)1 The information also alleged defendant had a prior juvenile adjudication
for robbery, a serious felony. (§ 1170.12, subd. (b)(3).) A jury convicted defendant as
charged. The court found true the prior adjudication allegation, but struck it pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to
the aggravated term of six years in state prison.
                                 STATEMENT OF FACTS
A. Prosecution Case
         On June 16, 2011, the homeowner of a two-story house in El Cerrito was washing
her breakfast dishes in her kitchen downstairs when she heard light but persistent
knocking at her front door. She went upstairs to peek through a bedroom window that
faces the street, but she did not see or hear anyone. She went to her home office, which is
also upstairs, where she noticed that her computer router, the control panel of her house
alarm system, and the land line for her cordless phone were all dead. She spotted two
strangers in her backyard from another window. She went back to her office, locked the
door, and called 911 on her cell phone. She stayed on the phone with the dispatcher
while she periodically peeked out the window in her office.
         Through that window she saw two African-American men almost directly below
her, about six feet away. One was short-haired, over five feet five inches tall, and wore a
black T-shirt. He stood away from the house, observing and talking to the other man.
The other man had dreadlocks, was about six feet tall, and wore a black hoodie and a
black beanie. He was out of her sight most of the time. Although she could not see the
kitchen window from her vantage point, she saw one of the intruders throw the screen


1
    Unless otherwise indicated, all statutory references are to the Penal Code.


                                               2
belonging to one of the kitchen windows over the fence. She heard the alarm go off, and
waited in the office until the police arrived and opened the door a few minutes later.
       The downstairs windows facing the backyard were protected by a security system.
They were equipped with contact magnets that would sound the alarm if the magnets
were separated by opening the window. The night before the burglary, the homeowner
had armed her security system. She did not recall turning off the alarm the next morning.
All the of the windows were still closed and locked with their screens intact the next
morning.
       When the homeowner checked the windows after the burglary, the glass in one of
the windows was broken and a screen was missing. That window was open about 40
centimeters, or just shy of one and one-half feet. To open the window, one presses the
latch, then slides the window horizontally. Part of the plastic window frame was
chipped, as if something had been used to pry the screen off the frame to gain access to
the sliding part of window. The window screen, which was found on the other side of the
fence, was bent in the middle. The two contact magnets on the window for the security
system were separated. A large concrete rock was found on the ground about five feet
from the window. Also, the cover to the electrical panel on the house was unlatched, the
panel door was ajar , and the main breaker switch to the house had been turned off.
       Two persons matching the homeowner’s description were separately detained by
the police a few blocks from the burgled house. The homeowner was brought to the
suspects’ locations in a police car. From the police car, the homeowner recognized one
of the suspects, later identified as then 17-year-old Darrian Shafer, by his dreadlocks,
build, and clothing – but not his face – as one of the persons she had seen in her
backyard. She was then driven a short distance and identified 18-year-old defendant by
his hair, clothing, face, and build as the other person she saw in her backyard.
       The police found fingerprints on the inner part of the sliding window, on the latch,
and on both sides of the window screen. Two fingerprint experts independently

                                             3
determined that the print found on the edge of the broken window matched defendant’s
left little finger. Shafer’s palm print was on the screen.
B. Defense Case
       Prior to defendant’s trial, Shafer had been placed at Byron Boys Ranch by the
juvenile court for his participation in the burglary. He testified under immunity. On June
16, Shafer called defendant to meet him near an apartment complex in El Cerrito. When
defendant arrived, Shafer told defendant he wanted to “[g]o rob a house” and chose the
homeowner’s house at random. Shafer had to pressure defendant to join him, because
defendant did not want to help rob the house.
       Shafer knocked on the front door and rang the doorbell while defendant stood
behind him and watched. When no one answered, Shafer found the house’s electrical
panel and switched off power to the house in order to disable the security alarm, while
defendant stayed by the front of the house. Shafer crawled under the fence and defendant
followed. Defendant remained behind Shafer while they were in the backyard. Shafer
removed the screen from a window, threw it over the back fence, and broke the window
with a big rock. He was proceeding to climb through the broken window into the house
when Shafer felt something catch his sweatshirt. It was defendant, who grabbed Shafer’s
sweatshirt and “had a grip on [him].” Defendant was trying to pull Shafer away from the
window. He had one hand on Shafer’s sweatshirt and the other hand holding onto the
window. Shafer tried to shake off defendant’s grip but could not do so. He did not hear
an alarm go off. Shafer had a change of heart and decided to leave. The two of them
then crawled back under the fence to the street, walking towards the apartment complex.
Shafer could tell defendant was angry with him.
       Defendant ran in a panic upon seeing a police car pass by, but Shafer kept on
walking. Shafer initially told the police he did not know what they were talking about
but eventually admitted he attempted to burglarize the house. He maintained he acted
alone and only met up with defendant afterwards.

                                              4
       When Shafer was first contacted by a defense investigator he again maintained he
acted alone, even after the investigator told Shafer there was a possibility defendant’s
fingerprints were found at the scene , because he “just did not think there could be
fingerprints on a window,” and he mistrusted the investigator. About a week later, during
a second interview, Shafer told the investigator defendant was with him in the backyard.
       The court took judicial notice of the fact that “defendant was convicted of a felony
crime of moral turpitude in Contra Costa County Superior Court on March 9, 2011” and
instructed the jury it could “consider this evidence only on the issue of credibility with
respect to any nonverbal statement made by the defendant. You may not consider this
evidence for any other purpose.”
                                      DISCUSSION
1. Exclusion of Defendant’s Statements to Shafer was Proper.
       Defendant argues the trial court erred in excluding statements defendant made to
Shafer before, during, and after the burglary indicating his lack of intent to commit a
burglary.2 The statements on which defendant bases his argument are the following: (1)
When told by Shafer he intended to burglarize the victim’s home, defendant said he did
not think that was a good idea; (2) when Shafer was trying to enter the house through the
window, defendant tugged at Shafer’s jacket and told him not to enter the house; and (3)
after Shafer and defendant left the backyard, defendant told Shafer he was stupid for
trying to rob the house. The prosecutor objected on hearsay grounds; defendant argued
the statements were not hearsay because they were not admitted for their truth, “but to
explain the effect on the listener and Mr. Shafer’s conduct.” The trial court sustained the
hearsay objection, but permitted Shafer to testify that he felt defendant tugging at his
jacket as he attempted to enter the residence.


2
  Defendant’s offer of proof regarding Shafer’s proposed testimony, the prosecutor’s
response, and the court’s ruling occurred off the record and are memorialized in a settled
statement on appeal prepared after the fact in the trial court.


                                              5
       On appeal, defendant asserts his own statements were admissible either as
nonhearsay circumstantial evidence of his lack of criminal intent, or as hearsay
statements about his lack of intent, admissible under the state-of-mind exception to the
hearsay rule under Evidence Code section 1250. However, so far as the settled statement
shows, neither of these grounds were argued to the trial court. Instead, the defense
argued the statements were admissible to prove their effect on Shafer’s conduct, an
argument not made here. Arguably, defendant’s failure to specify his theories of
admissibility below forfeits his claim on appeal. (People v. Partida (2005) 37 Cal.4th
428, 435; People v. Abel (2012) 53 Cal.4th 891, 924; People v. Pearson (2013) 56
Cal.4th 393, 470, fn. 10, citing Evid. Code, § 354.) In any event, the claim is not
meritorious.
       A trial court's evidentiary rulings, including those which admit or exclude
evidence based on distinctions between nonhearsay and the state of mind exception to the
hearsay rule, are reviewed for abuse of discretion “ ‘ “and will not be disturbed except on
a showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Geier
(2007) 41 Cal.4th 555, 585; People v. Rowland (1992) 4 Cal.4th 238, 264.)
       The distinction between a declarant’s nonhearsay statement of intent and a
declarant’s hearsay statement of his then existing state of mind is often difficult to draw.
“The threshold determination is whether the proffered statement is hearsay.” (People v.
Ortiz (1995) 38 Cal.App.4th 377, 389.) Hearsay is “evidence of a statement that was
made other than by a witness while testifying at the hearing [i.e., by the declarant] and
that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) On
the other hand, a declarant’s statement “which does not directly declare a mental state,
but is merely circumstantial evidence of that state of mind, is not hearsay. It is not
received for the truth of the matter stated, but rather whether the statement is true or not,
the fact such statement was made is relevant to a determination of the declarant's state of

                                              6
mind. [Citation.] . . . [S]uch evidence must be relevant to be admissible―the declarant's
state of mind must be in issue. ([Evid. Code,] § 210.) A limiting instruction is required
with declarations used as circumstantial evidence of the declarant's mental state; that is,
the declaration is not received for the truth of the matter stated and can only be used for
the limited purpose for which it is offered. ([Evid. Code,] § 355.)” (People v. Ortiz,
supra, 38 Cal.App.4th at p. 389, italics added.)
        Although the declarant’s (i.e., defendant’s) state of mind (i.e., his intent) was at
issue, the three statements defendant made to Shafer do not qualify as nonhearsay
circumstantial evidence tending to prove by inference his lack of intent to burglarize the
victim’s home. It is true that the statements were not offered to prove (1) it was a bad
idea to burglarize the victim’s home, (2) Shafer should not enter the house, or (3) Shafer
was stupid. But if not true, those facts did not give rise to any inference about
defendant’s intent. The possible inference defendant lacked burglarious intent springs
not from the fact he made such statements, regardless of the truth of their content; the
inference, such as it is, arises only if it is true defendant believed it was a bad idea to
burglarize the victim’s home -- he actually thought Shafer should not enter the house,
and really did believe Shafer was stupid for trying to burglarize the house. However, if
those statements were not offered to prove the state of defendant’s true feelings, then they
were not relevant to defendant’s intent and were inadmissible as nonhearsay evidence
lacking relevance to any disputed issue in the case. (Evid. Code, § 210.)
       Assuming the statements, if true, are relevant to defendant’s intent, they are
hearsay. Evidence Code section 1250 makes admissible, for its truth, hearsay “evidence
of a statement of the declarant’s then existing state of mind, emotion, or physical
sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or
bodily health) . . . when: [¶] (1) The evidence is offered to prove the declarant's state of
mind, emotion, or physical sensation at that time or at any other time when it is itself an
issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct

                                               7
of the declarant.” (Evid. Code, § 1250, subd. (a), italics added.) However, “[t]his section
does not make admissible evidence of a statement of . . . belief to prove the fact . . .
believed.” (Evid. Code, § 1250, subd. (b).)
       A statement that otherwise meets the requirements of section 1250 is nevertheless
inadmissible “if the statement was made under circumstances such as to indicate its lack
of trustworthiness.” (Evid. Code, § 1252.) The trial court also retains broad discretion to
exclude otherwise admissible hearsay evidence if “its probative value is substantially
outweighed by the probability that its admission will . . . create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352;
People v. Ortiz, supra, 38 Cal.App.4th 377, 394.)
       In our view, the trial court properly could have excluded evidence of these hearsay
statements because they were “made under circumstances such as to indicate [their] lack
of trustworthiness.” (Evid. Code, § 1252.) While defendant’s words indicate his
discomfort with what was taking place, his actions – waiting for Shafer as he knocked on
the door, following Shafer under the fence into the backyard, standing guard in the
backyard while Shafer broke the window, and ultimately grabbing the window himself –
suggest his comments may have been a way of hedging his bets: expressing misgivings
about the whole criminal enterprise in case it went awry, but contributing to its success in
the hope of getting away with some valuables. Under these circumstances, we cannot say
the trial court abused its discretion in concluding defendant’s statements were an
unreliable indicator of his true state of mind during the burglary.

2. Impeachment of Defendant’s Assertive Conduct with Evidence of Defendant’s
   Prior Felony was Proper.
       Although the trial court excluded defendant’s verbal statements to Shafer on
hearsay grounds, it permitted Shafer to testify about defendant’s nonverbal act of pulling
Shafer away from the window by his sweatshirt. Over defense objection, the trial court
later permitted the prosecutor to introduce evidence of defendant’s prior felony, on the


                                              8
theory that the act of pulling on Shafer’s sweatshirt was assertive conduct equivalent to a
hearsay statement offered to prove that defendant did not intend to participate in or
withdrew from the burglary, and this nonverbal statement could be impeached just as a
verbal hearsay statement could be impeached.3
       Defendant argues that his act of pulling on Shafer’s sweatshirt was not assertive
conduct intended to be a substitute for a verbal or written statement. As such, it was
admitted as nonhearsay evidence, and was not a “statement” by a declarant subject to
impeachment. While defendant’s argument has surface appeal, for the following reasons,
it does not carry the day.
       Evidence Code section 1202 permits the impeachment of a declarant’s hearsay
statement by means of a prior felony conviction to attack the credibility of that hearsay
declarant when his exculpatory statements are admitted but he does not testify at trial.
(People v. Jacobs (2000) 78 Cal.App.4th 1444, 1452-1453; People v. Little (2012) 206
Cal.App.4th 1364, 1373-1374.) Evidence Code section 225 defines a statement as an
“oral or written verbal expression” or “nonverbal conduct of a person intended by him as
a substitute for oral or written verbal expression.” (Evid. Code, § 225, subd. (a).) As
explained in the comment to Evidence Code section 1200 (defining hearsay), “evidence
of a person’s conduct out of court is not inadmissible under the hearsay rule expressed in
Section 1200 unless that conduct is clearly assertive in character. Nonassertive conduct
is not hearsay.” (Evid. Code, § 1200, com.) Put differently, “[f]or purposes of the
hearsay rule, conduct is assertive if the actor at the time intended the conduct to convey a
particular meaning to another person. [Citation.] For example, a nod of the head in
response to a question calling for a yes-or-no answer, or a gesture pointing to a particular



3
  The trial court referred to the conviction as a “felony crime of moral turpitude” and
instructed the jury it could consider the evidence “only on the issue of credibility with
respect to any nonverbal statement made by the defendant. ”


                                             9
person when asked to identify a perpetrator, are examples of assertive conduct.” (People
v. Jurado (2006) 38 Cal.4th 72, 129.)
       In Jurado, the defense unsuccessfully sought to admit at trial a videotape that was
made, without defendant’s knowledge, while he was being interrogated by police
detectives about a murder. (Id. at p. 128.) The videotape showed defendant’s emotional
displays and statements he made, including an expression of remorse. (Id. at pp. 128-
129.) The Supreme Court ruled that evidence of defendant’s emotional responses should
not have been excluded as hearsay because they were not assertive conduct: “[N]othing
in the videotape suggests [they] were voluntary or that he intended them to convey any
particular meaning to the interrogating officers.” (Ibid.) The court also ruled defendant’s
“statements, including assertions and descriptions of his own feelings and other mental
states, were hearsay,” and they were not admissible under the state-of-mind exception to
the hearsay rule because they were “self-serving postcrime statements” made under
circumstances indicating a lack of trustworthiness. (Id. at p. 130.)
       People v. Snow (1987) 44 Cal.3d 216 is also instructive here. In Snow, a
prosecutor was permitted to testify, over a defense hearsay objection, that when the
prosecutor informed defense counsel about a murdered victim’s death, defendant stood
by impassively whereas defense counsel appeared shocked. (Id. at p. 227.) The trial
court impliedly found defendant’s conduct was hearsay, but admitted the evidence of
defendant’s non-response as an adoptive admission he killed the victim. (Ibid.) The
Supreme Court concluded the evidence of defendant’s passive conduct was not
admissible as an adoptive admission, because no accusation had been leveled against him
for him to adopt. (Ibid.) Nevertheless, the court found the evidence was properly
admitted on the basis that “[d]efendant's passive response to the prosecutor's statement
was probative of defendant's prior knowledge of the Koll killing. Certainly, some sort of
affirmative response could have been expected under these circumstances. Such
nonassertive responses or reactions do not fall within the proscriptions of the hearsay

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rule. (See Evid. Code, §§ 1200 [hearsay rule applies to ‘statements’], 225 [‘statement’
does not include nonverbal conduct unintended as substitute for verbal expression] . . . .)”
(People v. Snow, supra, 44 Cal.3d 216, 227-228.)
       We draw the following lessons from Jurado, Snow, Jacobs, Little, and Evidence
Code sections 225 and 1202: If a declarant’s conduct is nonassertive – that is, not
intended as a communicative substitute for a verbal statement – it may be admissible in a
given case over a hearsay objection, assuming it is relevant to a disputed issue at trial.
But if it is admitted as nonassertive, nonhearsay evidence, the declarant cannot be
impeached with his prior conviction because he has made no impeachable statement by
his nonassertive conduct. On the other hand, if the declarant’s conduct is assertive – that
is, his conduct is intended to communicate some message and is a substitute for a verbal
statement to the same effect – it is a hearsay “statement” and it is inadmissible unless it
falls within the parameters of a recognized hearsay exception. If it does qualify for
admission under a recognized hearsay exception, the hearsay declarant of the statement is
subject to impeachment by felony conviction.
       Applying these lessons to the case under review, we hold the trial court was
entitled to conclude that defendant, by his conduct, was in effect telling Shafer to stop the
burglary. The settled statement shows defense counsel’s offer of proof with respect to
Shafer’s proposed testimony included the following: “Mr. Shafer felt something tugging
at his jacket and turned around to look; [] Mr. Shafer saw Mr. Ward pulling on his jacket
and Mr. Ward told him not to go in; [] Mr. Shafer and Mr. Ward then left the backyard.”
(Italics added.) On this record, the trial court could and evidently did decide defendant’s
conduct was assertive because it was intended to communicate to Shafer he should stop
the burglary; defendant’s conduct qualified as a substitute nonverbal statement of
defendant’s then-existing state of mind; it was made under sufficiently trustworthy
circumstances, and defendant’s tugging on Shafer’s shirt was relevant to defendant’s
intent, a disputed issue in the trial. Consequently, as the nonverbal statement of a hearsay

                                             11
declarant, it was subject to impeachment with defendant’s felony conviction under
Evidence Code sections 1202 and 788. No abuse of discretion appears.

3. The Trial Court Did Not Misunderstand or Abuse its Discretion in Setting the
   Restitution Fine Pursuant to Section 1202.4.
       Pursuant to section 1202.4,4 the trial court imposed a restitution fine of $1,440. It
arrived at that figure by using the formula provided in the statute; that is, the court
multiplied the statutory minimum fine ($240) by the number of years (six years) of
defendant’s incarceration. Defendant asserts the trial court misunderstood the scope of
its discretion in that it “believed that the fines could not be waived and that it was
required to set the amount given the formula in Penal Code Section1202.4, subd. (b)(2).”
He further asserts “when appellant asked the court for a reduction in fines, the court
failed to exercise its discretion in doing so and stated that it believed it was statutorily
mandated to order the restitution fines according to the calculation it used to determine
the fine.” (Italics added.)
       The record does not support defendant’s assertions, or otherwise affirmatively
show that the trial court misunderstood the proper scope of its discretion. The record

4
   Penal Code section 1202.4 provides in relevant part: “(b) In every case where a person
is convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record. [¶] (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 two hundred forty dollars ($240) starting on
January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three
hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand
dollars ($10,000). . . . [¶] (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 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. A
defendant's inability to pay shall not be considered a compelling and extraordinary reason
not to impose a restitution fine. Inability to pay may be considered only in increasing the
amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b) . . . .”




                                              12
shows that before imposing the restitution fine according to the statutory formula, the
court had already determined that the aggravated term applied, and the court confirmed
with its clerk that the statutory minimum had been raised to $240. After imposing the
restitution fine, the parole revocation fine, and various other fines and fees, defense
counsel said: “Your Honor, I’d ask the Court to consider at least waiving some of the
fees and fines. One, the Court has now just sentenced Mr. Ward to state prison. He has
no form of income . . . [and] he will not be getting out of prison any time within the next
year or two. So I would ask the Court, at least on some of the ones that the Court is able,
to waive those . . . fines.” The court waived attorney fees and the probation report fee,
but noted that restitution and other fees were mandatory. The court added: “I don’t think
there’s anything else I have the discretion to waive. If there is, tell me and I’ll consider
waiving it. But I don’t think there is. Restitution fine.” Defense counsel responded,
“Yeah, no. I think the restitution fine is mandated and, obviously, the actual restitution,”
to which the court replied: “Right.”
       Nothing in the court’s comments indicate it believed it was required to employ the
statutory formula for fixing an appropriate restitution fine. On the contrary, the record on
the whole supports the inference the court was well acquainted with the statute, knew the
restitution fine was mandatory absent extraordinary and compelling circumstances, and
knew the minimum fine had increased. The statute unambiguously provides that use of
the statutory formula is discretionary; inability to pay does not constitute an extraordinary
or compelling reason to waive the restitution fine; and the restitution fine should reflect
the seriousness of the offense. No misunderstanding or abuse of discretion appears.




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                                   DISPOSITION
      The judgment is affirmed.




                                               _________________________
                                               Dondero, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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