P. v. Kennedy
Filed 7/13/12 P. v. Kennedy CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID HENRY KENNEDY,
Defendant and
Appellant.
H037069
(Santa Clara
County
Super. Ct.
No. CC954314)
Defendant
David Henry Kennedy was convicted after jury trial of one count of making a
count of making a criminal threat to Sherilyn Massaro. (Pen. Code, § 422).
a count of making criminal threats to Tina Brown and as to a misdemeanor count of
resisting an officer (§ 148, subd. (a)(1)), and the trial court dismissed those
charges upon motion of the prosecutor.
The court suspended imposition of sentence and placed defendant on
probation for three years with various terms and conditions, including that he
serve one year in county jail. The court
separately ordered defendant to pay a presentence investigation fee of $300
pursuant to section 1203.1b.
On appeal,
defendant contends that (1) the trial court’s refusal to require the prosecutor
to elect which act the individual charges were based on violated his rights to
due process and a fair trial, (2) the court erred by giving a misleading
modified instruction regarding the section 422 charges, (3) the cumulative
effect of the errors requires reversal, and (4) the court improperly imposed
the $300 presentence investigation fee.
We will affirm the judgment.
Defendant
was charged by information with three counts of making criminal threats (§ 422;
counts 1 – 3), and one count of resisting
an officer (§ 148, subd. (a)(1); count 4, a misdemeanor). The alleged victim of count 1 was Tina Brown,
the alleged victim of count 2 was Sherilyn Massaro, and the alleged victim of
count 3 was Tasha Davis.
On August 27, 2009, Tina Brown was the
community manager, Tasha Davis was the administrative assistant, and Sherilyn
Massaro was the lot inspector for the Casa de Lago mobile home park in San
Jose. Their
office was in the main clubhouse of the park.
Defendant was a resident of the park.
Around 3:00 p.m. that day, Brown and Massaro were in
the office and Davis was on her
lunch break when defendant came in and angrily complained about a broken water
meter hose. Brown called the maintenance
crew and told them to check out the situation.
Defendant left the office and sped off on a motorcycle. After the maintenance crew assessed the
situation, Brown called a plumber.
When Davis
returned from her lunch break around 3:45 p.m., defendant was standing at the
office counter. She asked defendant if
there was something she could help him with, and defendant responded, “When is
he going to get here.†Because Davis did
not know what defendant was talking about, she spoke with Brown and then told
defendant that a plumber had been contacted and would be out to his space
soon. Defendant said he would turn it
off himself, but Massaro told him not to do that and that the plumber would be
there as soon as he could.
Davis asked
defendant what had happened. Defendant
said that somebody had tied a water hose to the bumper of his truck and that
when he pulled out of the driveway that morning he ripped the water meter pipe
out of the ground. He said that every
time the lady with brown hair drives around on a cart something happens to his
space, and that he should have shot that lady when she put her foot on his
motorcycle. Massaro stood up and said
that she was the one on the cart and that she did not touch his motorcycle. Defendant said that he should have shot her a
long time ago. This made Massaro fear
for her life. Brown walked over, moved
Massaro away from the counter, and returned to her desk. Massaro stood where she could no longer see
defendant, but could still hear him.
Davis put
her hand on defendant’s and said something to him to try to redirect his
attention back to her. Defendant
responded by looking at Davis and saying, “Don’t tempt me. I’ll kill you, too. I’ll shoot you.†Davis was terrified, and she told Brown that
defendant had just threatened to kill her.
Brown
walked up to the counter, pushed Davis aside, and addressed defendant. She told him that he needed to go back to his
space to wait for the plumber. Defendant
said that he wasn’t going anywhere, that he would wait for the plumber where he
was. Brown said that she was going to
call the police and she walked away from the counter. Davis stood by a filing cabinet keeping
defendant in her line of sight.
Defendant stayed where he was for a moment and said, “Fuck it, I will shoot
and kill you all. I don’t even
care.†He then left the building. Davis and Massaro both heard defendant’s
threat and they both took it seriously.
Davis told Brown what defendant had said. Brown was afraid for herself and for
everybody else. She called 911 and told
the dispatcher that defendant had threatened two of her employees.
The three
women were standing at the counter when two officers arrived in response to
Brown’s 911 call. The women told the
officers who defendant was, what he had said, and where he lived. The officers went to defendant’s park
space. Later, one of the officers
returned to the office and requested that each of the women separately give him
a statement, which they did.
Defendant
did not initially cooperate with the officers when they arrived at his park
space. He was eventually taken into
custody. He admitted to an officer that
he had told the women at the office that he had killed before and would kill
again, and he admitted that it was reasonable for the women to think that he
was going to return to shoot them. Two
loaded guns and additional ammunition were seized from on top of the bed in
defendant’s residence.
Defendant
did not testify in his own behalf and did not present any other defense
testimony.
On May 6,
2011, the jury found defendant guilty of count 2 (§ 422; making criminal
threats to Massaro) and count 3 (making criminal threats to Davis). The jury was unable to reach verdicts on
count 1 (making criminal threats to Brown) and count 4 (§ 148, subd. (a)(1);
misdemeanor resisting an officer), and the court declared a mistrial as to
those counts.
On June 17,
2011, the court suspended imposition of sentence and placed defendant on
probation for three years with various terms and conditions, including that he
serve one year in county jail. The court
separately ordered defendant to pay a presentence investigation fee of $300
pursuant to section 1203.1b. On motion
of the prosecutor, the court dismissed counts 1 and 4.
Prosecutorial Election
During the discussions regarding
the proposed jury instructions, defense
counsel requested the prosecutor elect which act he was relying on to
constitute each of the criminal threats alleged in counts 1, 2, and 3.
“[T]here were statements that were brought into evidence that Mr.
Kennedy is alleged to have said to Miss Massaro, something along the lines of,
I should have shot your ass a long time ago, or I should have shot you a long
time ago. [¶] And it was in relation to an incident that
allegedly occurred where Miss Massaro touched his motorcycle. That statement in and of itself cannot
constitute a 422 because it does not meet the elements of a 422 . . . . [¶]
And the concern that I have is that the jury may find that that
statement was made and erroneously rely upon that statement in order to arrive
at a conviction on the count that goes to Miss Massaro. [¶]
And so that is the reason why I requested that the District Attorney
make an election so that it was clear to the jury that he was not proposing
that they find a conviction based upon that statement but, rather, a later
statement that was allegedly made that, I should kill you all, or I will kill
you all, or I will kill everybody.â€
The court
stated, “I don’t think the DA is required to make an election under these
circumstances.†“For one thing, the
statement by itself, I should have shot you a long time ago, clearly does not
comply with all the elements required in [CALCRIM No.] 1300, for reasons which
are pretty obvious. [¶] And so, you know, I can’t possibly instruct
the jury about every possible path they might take that would be incorrect.â€
Defense
counsel then submitted the following proposed pinpoint instruction: “The statement to Sherilyn Massaro, I should
have shot you a long time ago, if the jury finds it to have been uttered cannot
be relied upon as an act which constitutes a criminal threat as an element of
counts one, two or three.â€
name="_ftnref3" title="">[3] The court found that the instruction was not
an accurate statement of the law “because I think it can be considered as part
of the entire incident.†The court
suggested the following language could be given at the end of CALCRIM No. 3500,
the standard unanimity instruction: “If
the jury finds that some version of the statement, I should have shot you a
long time ago, was made to Sherilyn Massaro, that statement cannot be solely
relied upon to constitute a criminal threat in counts one, two or three.†The prosecutor “was okay with that
statement,†but defense counsel was not.
Counsel explained: “My concern
with the instruction that the court proposed was that there could be confusion. [¶]
There is evidence that, or I anticipate that there will be evidence that
Mr. Kennedy had weapons, and that he was angry and he stormed out, and that the
concern is, is that they could misconstrue the additional words appended to
[CALCRIM No.] 3500 that those words could constitute the threat and that they
would have to look at additional surrounding circumstances in order to find a
422. [¶]
So I feel that in the absence of the instruction as I’ve requested it
that the safer course of action would be to not alter [CALCRIM No.] 3500 at
all, and so that’s my decision.†The
court responded, “All right. Thank
you. And that’s what I’ll do then.â€
The court
later instructed the jury pursuant to CALCRIM No. 3500 as follows: “The defendant is charged with making
criminal threats in Count One, Two, and Three.
[¶] The People have presented evidence
of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless
you all agree that the People have proved that the defendant committed at least
one of these acts and you all agree on which act he committed.â€
On appeal,
defendant contends that the court’s refusal to require the prosecutor to make
an election deprived him of his rights to due process and a fair trial as it
precluded him from raising several key defenses. Defendant first argues that there was “strong
evidence that [he] never said ‘don’t tempt me. . . . don’t tempt me. I will kill you too. I will shoot you,’ which gives rise to an
argument that any verdict based on that statement is unsupported by the evidence. Unfortunately, [defendant] could not make
this argument at trial because the jury’s guilty verdict on Count 3 could have
been based on the ‘I’ll kill you all’ statement that Ms. Massaro heard, on both
statements, or even on the ‘I should have shot you back then’ statement, which
all agreed did not constitute a criminal threat.†Defendant also argues that he was precluded
from arguing below that he cannot be convicted of, or separately punished for,
two counts of violating section 422 based on one threat to two victims. He argues that the giving of the standard
unanimity instruction did not cure the error and that any failure by defense
counsel to preserve these claims by raising them below constitutes ineffective
assistance.
The People
first contend that defendant’s election-related arguments are forfeited by the
failure to raise them below and that defense counsel was not ineffective for
failing to do so. The People also
contend that no prosecutorial election was required because of the court’s decision
to give a unanimity instruction. Lastly,
the People contend that the lack of an election did not foreclose defendant
from raising the defenses below that he raises here.
Under the
constitutional right to due process, a
defendant “is entitled to a verdict in which all 12 jurors concur, beyond a
reasonable doubt, as to each count charged.â€
(People v. Jones (1990) 51
Cal.3d 294, 305.) “The general rule is
that the jury must unanimously ‘agree upon the commission of the same act in
order to convict a defendant of a charged offense.’ [Citations.]
Essentially, an ‘either/or’ rule has evolved: ‘[W]hen the accusatory pleading charges a
single criminal act and the evidence shows more than one such lawful act,
specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree
beyond a reasonable doubt that defendant committed the same specific criminal
act.’ [Citation.]†(People
v. Gear (1993) 19 Cal.App.4th 86, 90 (Gear).) “This requirement of unanimity as to the
criminal act ‘is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the
defendant committed.’ [Citation.]†(People
v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
“A
violation of section 422 requires: (1) the defendant willfully threatens to
kill or seriously injure another person; (2) the defendant has the specific
intent that the listener understands the statement to be a threat; (3) the
threat and the circumstances under which it was made lead the listener to
believe the defendant would immediately carry through on the threat; and (4)
the threat causes the listener to suffer sustained fear based upon a reasonable
belief the threat would be carried out.â€
(People v. Solis (2001) 90
Cal.App.4th 1002, 1023-1024 (Solis).) A conviction under section 422 requires proof
“that the defendant made the threat ‘with the specific intent that the
statement . . . is to be taken as a threat, even if there is no intent of
actually carrying it out . . . .’ †(
228; § 422; see CALCRIM No. 1300.)
“[T]he determination whether a defendant intended his words to be taken
as a threat, and whether the words were sufficiently unequivocal,
unconditional, immediate and specific they conveyed to the victim an immediacy
of purpose and immediate prospect of execution of the threat can be based on
all the surrounding circumstances and not just on the words alone.†(People
v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) Where the defendant does not personally make
the statement to the target victim, a conviction under section 422 requires
proof that the defendant specifically intended the threat to be conveyed to the
target. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861-862;
905, 913-914 (Felix).)
“ ‘Since its origin in 1872, the Penal Code
has prohibited multiple punishment for a single “act or omission.†(§ 654.) . . . Since 1962 we have interpreted section 654 to
allow multiple convictions arising out of a single act or omission, but to bar
multiple punishment for those convictions.
[Citations.] . . . [E]xecution of
the sentence for one of the offenses must be stayed.’ [Citations.]
[¶] Whether multiple convictions
are based upon a single act is determined by examining the facts of the
case.†(People v. Mesa (2012) 54
Cal.4th 191, 195-196.) However, section
654 does not apply to crimes of violence against multiple victims. (Ibid.;
People v. Oates (2004) 32 Cal.4th
1048, 1063.)
Under the multiple victim exception
to section 654, “ ‘even though a defendant entertains but a single principal
objective during an indivisible course of conduct, he may be convicted and
punished for each crime of violence committed against a different
victim.’ †(People v. Centers (1999) 73 Cal.App.4th 84, 99.) Section 422 requires that a victim suffer
harm, namely a sustained fear of death or injury (see In re Ricky T. (2001) 87
Cal.App.4th 1132, 1140-1141), and it “constitutes a crime of psychic violence
which, if directed at separate listeners (victims) who each sustain fear, can
be punished separately.†(
Making a criminal threat is like assaulting someone, and it is settled
that a person can be convicted of and punished for multiple counts of assault
based on a single assaultive act where there is more than one victim. (See Wilkoff
v. Superior Court (1985) 38 Cal.3d 345, 352; People v. Prater (1977) 71 Cal.App.3d 695, 699.)
Here, the
prosecution charged defendant with only one count (count 3) of making a
criminal threat to Davis but introduced evidence and argued to the jury that
defendant made two separate but similar threats to her: (1) “Don’t tempt me. I’ll kill you, too. I’ll shoot youâ€; and (2) “I will shoot and
kill you all. I don’t even care.†The record shows that the first threat was
made solely to Davis when they were both at the counter. The second threat was made later, after
everyone had left the counter and just before defendant walked out the
door. The record also shows that the
prosecutor argued to the jury that defendant’s second threat was the only basis
for the charge involving Massaro (count 2) and the charge involving Brown
(count 1), because Massaro also heard the threat and Davis communicated the
threat to Brown. The prosecutor also
argued to the jury that defendant’s statement to Massaro that he should have
shot her back when she put her foot on his motorcycle was “not a charged
offense in this case [because] it doesn’t [meet] all six of the[]
elements. [¶] But it’s something you can and should
consider . . . in determining what the defendant’s intention was . . . .†The court gave the standard unanimity
instruction after defendant rejected the court’s offer to modify it. Nothing more was required of the court or the
prosecutor in this case. The prosecutor
informed the jury which act or acts the People were relying on as a basis for
each count, and the unanimity instruction eliminated the danger that defendant
would be convicted of each count if there was no single offense which all the
jurors agreed defendant committed. (
supra, 25 Cal.4th at p. 1132.)
Nor can we
find that defendant has shown that defense counsel rendered ineffective
assistance by failing to raise below the issues he has raised on appeal, that
the failure by the prosecutor to make an election precluded him from raising
several key defenses.
“ ‘ “[I]n order to demonstrate ineffective assistance of
counsel, a defendant must first show counsel’s performance was ‘deficient’
because his [or her] ‘representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.’ (Strickland
v. Washington[ (1984)] 466 U.S. 668, 687-688 . . . .) Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
[Citation.] Prejudice is shown
when there is a ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]â€
[Citation.]’ [Citation.]†(People
v. Weaver (2001) 26 Cal.4th 876, 925.)
In
this case, defense counsel cannot be faulted for failing to raise an argument
in the trial court that any verdict based on defendant’s first threat to
Davis—“Don’t tempt me. I’ll kill you,
too. I’ll shoot youâ€â€”was unsupported by
the evidence. Assuming that the jury’s
verdict on count 3 was based on that reported threat, Davis’s testimony
regarding the threat is sufficient evidence to support the verdict even though
Massaro and Brown did not hear defendant make such a threat. “ ‘Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends.’ [Citation.] Unless it describes facts or events that are
physically impossible or inherently improbable, the testimony of a single
witness is sufficient to support a conviction. [Citation.]â€
(People v. Elliott (2012) 53
Cal.4th 535, 585; People v. Young
(2005) 34 Cal.4th 1149, 1181.) Davis’s
testimony did not describe facts or events that were physically impossible or
inherently improbable.
Additionally,
counsel cannot be faulted for failing to argue below that defendant cannot be
convicted of or sentenced for making more than one criminal threat. A single criminal threat directed at multiple
victims, such as defendant’s reported threat that he would kill or shoot “you
all,†can support multiple convictions.
(Solis, supra, 90 Cal.App.4th at p. 1024.)
At sentencing, the court suspended imposition of sentence and placed
defendant on probation. Although the
clerk’s minutes state that the court imposed a one-year jail term on count 2
with a concurrent one-year term on count 3, the court’s oral pronouncement of
judgment was simply that one of the conditions of defendant’s probation was
that “[a] county jail sentence of one year is imposed and the defendant will
receive no credits because he is waiving his credits . . . .†Defendant has not shown that he has suffered
multiple punishment and counsel is not foreclosed from raising a section 654
argument if and when defendant violates the terms of his probation and the
court decides to impose sentence. In
sum, defendant has not shown that he was prejudiced by any alleged omissions of
trial counsel.
When the
court instructed the jury after the close of evidence, it gave CALCRIM No.
1300, the standard instruction on section 422, three times, one for each of
counts 1, 2, and 3. Each time it was
given, the alleged individual victim of the specified count was clearly
stated. The court also gave CALCRIM No.
3500, the standard unanimity instruction, and CALCRIM No. 3515, which
states: “Each of the counts charged in
this case is a separate crime. You must
consider each count separately and return a separate verdict for each one.†In addition, the court provided the jury
members individual copies of all its instructions.
However, in
its pre-instructions to the jury before the presentation of the evidence, and
again during deliberations in response to a jury question, the court gave a
single revised version of CALCRIM No. 1300 which included all three alleged
victims’ names.
title="">[4] Defendant objected to the italicized language
in paragraph 3 of the revised instruction given during deliberations on “due
process grounds . . . because that language was not included in the
instructions prior to argument.†The
court explained that the italicized language was “specifically from the
approved language for 1300†and that it put the alleged victims’ names all in
one instruction “for convenience sake†and “[s]o I didn’t single out any
person. . . .â€
On appeal,
defendant contends that the court erred when it modified CALCRIM No. 1300 by
including all three alleged victims’ names in one instruction because it was
misleading and “permitted the case to go to the jury on a legally and factually
incorrect theory of guilt, namely, that [defendant] could have violated Penal
Code section 422 three times by directing any or all of the statements he made
towards any or all of the three alleged victims. This theory was factually incorrect in that
not all statements had been heard by all victims. It was legally incorrect in that a single
threat uttered to two victims does not constitute multiple violations of the
statute.†Defendant further contends
that “under the circumstances, the trial court had a duty to instruct the jury,
even in the absence of a request by counsel, that it had to agree on a separate
and distinct factual basis for each verdict.â€
The People
contend that defendant has forfeited these claims on appeal by failing to raise
them below. The People further contend
that “the modified instruction neither offered a factually impermissible nor a
legally infirm theory,†and that the court’s unanimity instruction ensured
unanimous verdicts.
We have
previously stated that a single threat, if directed at separate listeners
(victims) who each sustain fear, can support multiple convictions and
punishments under section 422. (
defendant made a criminal threat that he intended the victims to either hear or
have communicated to them. (
Accordingly, the modified instruction was not legally incorrect, nor did
it permit a guilty verdict on a factually impermissible theory. Additionally, the court’s instructions to the
jury pursuant to CALCRIM Nos. 3500 and 3515 ensured that the jury had to
separately agree on a factual basis for each count and to arrive at unanimous
verdicts. No error has been shown.
Defendant
contends that “the injurious effect of the combination of judicial errors and
ineffective assistance of counsel†constitutes “cumulative prejudice in
violation of his due process rights . . . .â€
(See Chambers v. Mississippi
(1973) 410 U.S. 284.) As we have found
neither judicial error nor ineffective assistance of counsel, we need not
further address defendant’s claim.
The
testimony at trial showed that defendant possesses a truck and a motorcycle,
and the summary of defendant’s offense in the probation report also mentions
the truck and motorcycle. The probation
report also states that defendant has a GED, that he worked as a shop foreman
from 1999 to 2007, that he has worked as a construction foreman since 2008 at
$14 per hour, and that he has no prior criminal history. In the report, the probation officer
recommended that defendant be ordered to pay a presentence investigation fee
not to exceed $450. At sentencing, the
court ordered as one of the conditions of defendant’s probation that he “seek
and maintain gainful employment.†When
the court was considering whether to order defendant to pay a presentence
investigation fee, the probation officer stated: “I believe the court can set it not to exceed
$450. And if there is an issue with his
ability to pay I do believe the Department of Revenue can set them out.†Defense counsel then stated: “Your Honor, I believe [defendant] is going
to have difficulty paying and I would request the court waive that fee or set
it at a lower amount.†The court
responded: “I am not going to waive
it. I will set it at $300. [¶] It
is imposed pursuant to section 1203.1[b] of the Penal Code.â€
On appeal,
defendant contends that there is insufficient evidence to support the court’s
imposition of a $300 presentence investigation fee over his objection. “The trial court refused to consider his
ability to pay. There is no evidence
that the probation officer made any determination of ability to pay, nor is
there any evidence in the record that [he] was advised of his right to have the
court make this determination or that he waived this right. Accordingly, the case should be remanded . .
. with instructions to determine [defendant’s] ability to pay before imposing
this fee.â€
The People
contend that, “[e]ven assuming the trial court’s statement was not an explicit
finding of [defendant’s] ability to pay the fee, ‘substantial evidence’
supports an implied finding.â€
Section
1203.1b, subdivision (a), provides in pertinent part: “In any case . . . in which a defendant is
granted probation . . . , the probation officer . . . shall make a
determination of the ability of the defendant to pay all or a portion of the
reasonable cost of . . . conducting any presentence investigation and preparing
any presentence report . . . . The reasonable cost of these services . . .
shall not exceed the amount determined to be the actual average cost thereof. .
. . The court shall order the defendant
to appear before the probation officer . . . to make an inquiry into the
ability of the defendant to pay all or a portion of these costs. The probation officer . . . shall determine
the amount of payment and the manner in which the payments shall be made to the
county, based upon the defendant’s ability to pay. The probation officer shall inform the
defendant that the defendant is entitled to a hearing, that includes the right
to counsel, in which the court shall make a determination of the defendant’s
ability to pay and the payment amount.
The defendant must waive the right to a determination by the court of
his or her ability to pay and the payment amount by a knowing and intelligent
waiver.â€
Section
1203.1b, subdivision (b), provides that when “the defendant fails to waive the
right provided in subdivision (a) to a determination by the court of his or her
ability to pay and the payment amount, the probation officer shall refer the
matter to the court for the scheduling of a hearing to determine the amount of
payment and the manner in which the payments shall be made. The court shall order the defendant to pay the
reasonable costs if it determines that the defendant has the ability to pay
those costs based on the report of the probation officer . . . .†While the court’s finding that the defendant
has the ability to pay the ordered presentence investigation fee may be
implied, the finding must be supported by substantial evidence. (People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)
In this
case, prior to sentencing, defendant appeared before the probation officer who
ascertained defendant’s educational background, employment history, and
possession of a truck and a motorcycle.
The probation officer then recommended to the court that defendant be
ordered to pay a $450 presentence investigation fee. At the sentencing hearing, defendant
contested his ability to pay that amount and he asked that the court waive the
fee or lower the amount. The court then
lowered the amount to $300. On this
record, we cannot say that the trial court refused to consider defendant’s
ability to pay the ordered $300 presentence investigation fee. Rather, that the court found that defendant
has the ability to pay the ordered fee is implied. Further, the finding is amply supported by
evidence in the record, given defendant’s possession of a truck and a
motorcycle, his employment history, and the probation condition that he seek
and maintain employment during the probationary period. (See e.g., People v. Hoover (2011) 199 Cal.App.4th 1470, 1472-1473 [ability to
pay was based on the defendant’s possession of a cell phone and car, and the
area in which he lived].) No remand for
a determination of defendant’s ability to pay is required.
The
judgment (order of probation) is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
GROVER, J.
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] A
recording of Brown’s 911 call was played for the jury.
