Filed 8/8/17 P. v. Muhammad CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JIMMY MUHAMMAD,

Defendant and Appellant.
D070897



(Super. Ct. No. SCD264893)

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
 
I.
INTRODUCTION
A jury found Jimmy Muhammad guilty of assault by means likely to produce great
bodily injury (Pen. Code, § 245, subd. (a)(4)) (count 1), attempting to make a criminal threat (§§ 422 & 664) (count 3); interfering with another person's civil rights by force or threat (§ 422.6, subd. (a)) (count 4); battery (§ 242) (count 5); and possession of narcotics paraphernalia (Health & Saf. Code, § 11364) (count 6). The jury found Muhammad not guilty of attempting to dissuade a witness from reporting a crime by force or threat (§ 136.1, subd. (b)(1)) (count 2). Muhammad admitted having suffered two prior serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and two prior strike convictions (§§ 667, subds. (b)–(i), 1170.12, 668).
At sentencing, the trial court struck one of the strike priors and sentenced Muhammad to an aggregate sentence of 18 years and 8 months in prison. The trial court also imposed a criminal laboratory charge under Health and Safety Code section 11372.5, subdivision (a), to which the court added various penalty assessments.
On appeal, Muhammad claims that the trial court erred in denying his motion for acquittal on the charge of interfering with another's civil rights by force or threat (count 4) (§ 422.6). Muhammad also contends that the trial court erroneously imposed penalty assessments on the crime laboratory charge. Muhammad maintains that the penalty assessments were improper because penalty assessments may be applied only to fines, and a criminal laboratory charge imposed pursuant to Health and Safety Code section 11372.5, subdivision (a) is a fee and not a fine. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's evidence
1. Count 3
Mohammad Zeidan, a clerk at a liquor store, knew Muhammad as a
regular customer at the store. On the morning of the charged offenses, Zeidan asked Muhammad to leave the store. Muhammad approached Zeidan at the counter, flexed his muscles, held up a fist, and said he would break Zeidan's jaw. Muhammad's action in threatening to strike Zeidan caused Zeidan to have "a little" concern for his safety. In addition, Muhammad called Zeidan a "bitch" and directed an obscene gesture toward him. Muhammad also said, "I will kill you," and "I will kill everybody in this mother fucking store." In addition, Muhammad knocked down multiple store displays.
2. Counts 4 and 5
Less than two hours later, Muhammad encountered his neighbor, Cedric Adams. As described in detail in part III.A.3, post, Muhammad approached Adams, called him a series of anti-homosexual epithets, and punched him several times.
San Diego Police Officer Eric McCoole testified that Muhammad directed a series of anti-homosexual slurs toward him and his partner while they arrested Muhammad during a separate incident in 2012. According to Officer McCoole, Muhammad repeatedly referred to the officers as "faggots," and said that the officers "suck[ed] each other's dicks."
3. Count 1
Shortly after encountering Adams, Muhammad attacked Stephanie Cadwallader. Muhammad entered a residence where Cadwallader was visiting, angrily accused her of stealing his money, and punched her. When Cadwallader attempted to get up, Muhammad pushed her to the ground. Muhammad also kicked Cadwallader while she was on the ground.
4. Count 6
Police responded to the scene and arrested Muhammad. Muhammad had a glass pipe with a bulbous end in his front pocket, which the arresting officer recognized as a pipe used to smoke methamphetamine.
B. Defense evidence
Muhammad testified in his defense. He acknowledged arguing with Zeidan on the day in question, but denied having threatened to kill him. Muhammad also acknowledged saying to Adams, "What's up faggoty boy," and pushing him in the forehead. However, Muhammad claimed that he had done so in a joking way. Muhammad also acknowledged that at the time of the incident involving Cadwallader, he believed she had stolen some of his belongings. However, Muhammad claimed that he began to physically fight with Cadwallader only after she allowed a pit bull to attack him.
III.
DISCUSSION
A. The trial court did not err in denying Muhammad's motion for acquittal on the charge of interfering with another person's civil rights by force or threat as to
victim Adams

Muhammad claims that the trial court erred in denying his motion for acquittal on the charge of interfering with another person's civil rights by force or threat (§ 422.6) (count 4).
1. Factual and procedural background
After the close of the People's case, Muhammad's counsel orally moved for a judgment of acquittal on all counts pursuant to section 1118.1. The court denied the motion, reasoning in part: "[T]here has been a sufficient showing. So based on the facts shown during the course of the trial, . . . it should go before the jury."
2. Governing law and standard of review
a. The law governing a motion for judgment of acquittal
Section 1118.1 provides:
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."

In People v. Watkins (2012) 55 Cal.4th 999, the Supreme Court outlined the law governing the review of a trial court's denial of a motion for acquittal:
"In considering whether the trial court erred in failing to grant the motion for judgment of acquittal under section 1118.1 . . . we ask whether 'there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged.' [Citation.] When, as here, the motion under section 1118.1 was made 'at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point' in the trial [citation]—in other words, based on the prosecution's case alone, and without considering the evidence subsequently adduced during the presentation of the defense case or evidence produced by the prosecution on rebuttal.

"In assessing such a claim, we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (Id. at p. 1019, fns. omitted.)

b. Substantive law
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 1350 concerning the elements of section 422.6 as follows:
"The defendant is charged in count [4] with interfering with another[ ] person's civil rights, by the use of force. To prove that the defendant is guilty of this crime, the People must prove that: one, the defendant used force to willfully interfere with or injure or intimidate or oppress another person's free exercise or enjoyment of that right, or privilege to be free from violence or bodily injury, established by the law, or the Constitution of California or the United States; two, the defendant did so in whole or in part because of the other person's actual or perceived sexual orientation; and the defendant intended to interfere with the other person's legally protected right or privilege. Someone commits an act willfully when he or she does it willingly or on purpose.

"The defendant acted in whole or in part because of the actual or perceived characteristic of that person, if: one, the defendant was biased against the other person, based on the other person's actual or perceived sexual orientation; and two, the biased motivation caused the defendant to commit the alleged acts. If you find the defendant had more than one reason to commit the alleged acts, the bias described here must have been a substantial motivating factor. A substantial factor is more than a trivial or remote factor; however, it does not need to be the only factor that motivated the conduct. Sexual orientation[ ] means heterosexuality, homosexuality, or bisexuality."

3. Application
Muhammad contends that the trial court erred in denying his motion for judgment of acquittal on count 4 because the People did not present sufficient evidence that Muhammad's anti-homosexual animus was a "substantial factor in his attack on Mr. Adams." We are not persuaded.
Adams testified that he is "openly gay," and that, on the day in question, Muhammad knew that Adams was gay. Muhammad began the encounter by calling Adams a "faggot" and "faggoty boy." Shortly thereafter, Muhammad punched Adams in the face twice. According to Adams, while he was on his cell phone with 9-1-1, Muhammad yelled, "Don't jack off to me, again," called Adams a "faggot," and then punched him in the face a third time, causing Adams to drop his phone. In addition, while Adams was on the phone with the 9-1-1 dispatcher, Muhammad kicked Adams in the back of his legs. The People played a recording of the 9-1-1 call for the jury, and Adams testified that Muhammad could be heard yelling "faggot," on the recording. Adams's testimony alone constitutes ample evidence sufficient to support a guilty verdict, and thus to support the trial court's denial of Muhammad's section 1181.1 motion. (See In re M.S. (1995) 10 Cal.4th 698, 727–728 [victims' testimony concerning antigay epithets and use of violence sufficient to prove specific intent necessary to support finding that defendant violated section 422.6].)
In addition to Adams's testimony, in finding that Muhammad acted in whole or in part due to anti-homosexual animus in committing the charged offense, the jury also could have reasonably relied on Officer McCoole's testimony that Muhammad directed a series of anti-homosexual slurs toward him and his partner during an arrest in 2012.
Muhammad contends that the "People were unable [to] prove the discriminatory motivation," required to sustain a conviction because Muhammad's "track record that day," including the threating behavior with Zeidan and his attack on Cadwallader, demonstrate that his actions toward Adams were not "unusual or targeted." To begin with, the People were not required to prove that Muhammad's attack on Adams was "unusual or targeted." Rather, the People were required to prove that Muhammad acted "in whole or in part because of [Adams's] perceived sexual orientation." As described above, in light of Muhammad's use of anti-homosexual epithets both on the day in question, and in the past, a reasonable jury could find that the People met this burden. Muhammad's argument that he was not motivated by anti-homosexual animus, and that he was merely "suffering from a mental illness, and on an extended tirade," is unpersuasive; a reasonable jury could find, based on the evidence discussed above, that he was motivated by antihomosexual animus.
We are not persuaded by Muhammad's contention that the fact that a magistrate refused to bind Muhammad over at the preliminary hearing on a hate crime sentencing allegation (§ 422.75, subd. (a)) demonstrates that the trial court erred in denying his motion for acquittal on the charged offense (§ 422.6). Simply put, the magistrate's refusal to bind Muhammad over on a sentencing allegation tied to an underlying offense (attempting to dissuade a witness by force or threat) (§ 136.1, subd. (c)(1)) that differs from the charged offense, does not demonstrate that there is insufficient evidence to support the charged offense (§ 422.6).
Finally, we are not persuaded by Muhammad's contention that affirming his conviction would "dilute[ ] the real purpose and protection of this statute" because Muhammad purportedly was not as subjectively motivated by anti-homosexual bias as were the defendants in other reported cases. For the reasons discussed above, a reasonable jury could find that Muhammad attacked Adams at least in part because of Adams's sexual orientation. No more is required. The fact that other cases may have involved even stronger evidence of anti-homosexual animus does not demonstrate that an affirmance of Muhammad's conviction would dilute the purpose of the statute.
Accordingly, we conclude that the trial court did not err in denying Muhammad's motion for acquittal on the charge of interfering with another person's civil rights by force or threat.
B. A criminal laboratory fine imposed pursuant to section 11372.5 is subject to
penalty assessments

Relying on People v. Watts (2016) 2 Cal.App.5th 223, 227 (Watts), Muhammad contends that the trial court erroneously imposed penalty assessments on the criminal laboratory monetary charge (§ 11372.5) that the court imposed based upon Muhammad's drug-related conviction, possession of narcotics paraphernalia (Health & Saf., § 11364) (count 6). Muhammad maintains that the penalty assessments were improper because penalty assessments may be applied only to fines, and a criminal laboratory monetary charge under section 11372.5, subdivision (a) is a fee and not a fine.
1. Governing law
Section 11372.5, subdivision (a) provides in relevant part:
"Every person who is convicted of a violation of Section . . . 11378 . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment.

"With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law."

In Watts, the Court of Appeal outlined "three different categories of monetary charges that may be imposed on a criminal defendant." (Watts, supra, 2 Cal.App.5th at p. 227.) "The first category of monetary charges that may be imposed includes charges to punish the defendant for the crime. . . . [¶] The second category of charges that may be imposed includes charges to cover a particular governmental program or administrative cost. . . . [¶] The third category of charges includes penalty assessments, which, when applicable, inflate the total sum imposed on the defendant by increasing certain charges by percentage increments." (Id. at p. 228.) Penalty assessments inflate only fines, penalties, or forfeitures, and do not inflate fees. (Ibid.)
The Watts court concluded, contrary to the weight of authority (see, e.g., People v. McCoy (2007) 156 Cal.App.4th 1246, 1251–1252; People v. Terrell (1999) 69 Cal.App.4th 1246, 1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522), that a monetary charge imposed pursuant to section 11372.5 is a fee rather than a fine, and thus, is not subject to penalty assessments. (Watts, supra, 2 Cal.App.5th at p. 231.) In reaching this conclusion, the Watts court noted that section 11372.5 is textually inconsistent. (See Watts, supra, at p. 231 ["The first paragraph of the provision characterizes the crime-lab fee as a 'criminal laboratory analysis fee,' but the second paragraph characterizes the $50 charge as a 'fine.' (§ 11372.5(a), italics added.)"].) The Watts court also acknowledged that "the second paragraph [of section 11372.5, subdivision (a)] establishes that in the case of an offense 'for which a fine is not authorized by other provisions of law,' the crime-lab fee acts as a fine and is, in turn, subject to penalty assessments." (Watts, at p. 235, italics added.) However, the Watts court noted that section 672 provides that "a trial court may impose a fine of up to $10,000 for any felony or up to $1,000 for any misdemeanor 'punishable by imprisonment in any jail or prison . . . in relation to which no fine is [otherwise] prescribed.' " (Watts, at p. 236, quoting § 672.) Thus, according to the Watts court, the "second paragraph of section 11372.5(a) has no current application and, in that sense, is surplusage." (Watts, at p. 236.)
2. Application
We agree with the Watts court that the text of section 11372.5, subdivision (a) is ambiguous with respect to whether the Legislature intended for a monetary charge imposed pursuant to the statute to constitute a fee or a fine. However, in light of the "interpretative difficulty" (Watts, supra, 2 Cal.App.5th at p. 237), posed by the Watts court's interpretation of the second paragraph in section 11372.5 as "surplusage" (Watts, supra, at p. 236), as well as the improbability that the Legislature intended for the same monetary charge to be a fee if imposed pursuant to the first paragraph of section 11372.5, subdivision (a) but a fine if imposed pursuant to the second, we follow the weight of authority and conclude that the criminal laboratory monetary charge specified in section 11372.5, subdivision (a) is better characterized as a fine, rather than a fee. We therefore conclude that a criminal laboratory fine imposed pursuant to section 11372.5, subdivision (a) is subject to penalty assessments.
Accordingly, we conclude that the trial court did not err in imposing penalty assessments premised on the criminal laboratory fine imposed pursuant to section 11372.5, subdivision (a).
IV.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.