Opinion
A158466
03-24-2022
THE PEOPLE, Plaintiff and Respondent, v. LYNARD ADAM CRAIG, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 18SF002801
NEEDHAM, J.
Lynard Adam Craig (Craig) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for driving a pickup truck at several children. He contends the court's instruction on assault with a deadly weapon was erroneous, because the instruction may have allowed the jury to conclude incorrectly that the truck was an inherently deadly weapon. He also contends the court should have instructed on the lesser-included offense of simple assault and should have given an unanimity instruction. Lastly, he argues that the matter should be remanded to the trial court to determine his ability to pay court-ordered fines and fees. We will affirm the judgment.
Except where otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
Craig was charged with assault by means likely to produce great bodily injury (§ 245, subd. (a)(4) [count 1]), assault with a deadly weapon (§ 245, subd. (a)(1) [counts 2, 3, 4, 5, and 6]), misdemeanor cruelty to an animal (§ 597, subd. (a) [count 7]), and kidnapping (§ 207, subd. (a) [count 8]). The matter proceeded to a trial by jury.
The operative amended information had numbered the counts differently. When presented to the jury, the charges were renumbered by stipulation. We refer to the counts as they were presented to the jury.
A. Evidence at Trial
In the afternoon or evening of March 11, 2018, O.D. (age 13 at trial) and M.J. (aged 10), along with their friends A.D. (age 13 at trial) and T.D. (age 14 at trial), were playing in the parking lot of the Light Tree Apartments in East Palo Alto. Also present were two other minors from the apartment complex, E.D. and 14-year-old G. W.
1. Craig Arrived and Allegedly Pursued Auunah
While the children were playing, Craig approached them with his dog. The children noticed he was drinking beer and walking like he was drunk. He talked with some of them as they played with the dog.
At one point, Craig put his arms around G.W. and A.D. G.W. left, claiming he had to go to the bathroom. Craig continued to talk to A.D. with his arm around her.
As A.D. recounted it, Craig told her she was a "beautiful little girl" and took her around the corner of a building to some back stairs where it was dark. Unable to pry Craig's hand off her shoulder, A.D. became afraid. Craig then held both of A.D.'s shoulders and asked if she wanted to "go upstairs." When she said "no," he moved his hands from her shoulders to her neck and asked again if she wanted to go upstairs, squeezing her neck. The other children screamed for A.D. to run. A.D. escaped from Craig and ran to O.D., M.J., T.D., and G.W. All the children then ran away, with the dog running behind them. Craig ran after them.
M.J. and O.D. confirmed the substance of Auunah's account at trial.
O.D. ran home and told her older sister M.D. (aged 15 at trial) that there was a man running around with his dog and chasing them. O.D. and M.D. went outside, and O.D. saw Craig go up to one of the upper floor apartments.
According to a witness who lived in a third-floor apartment, Craig had visited her that day between 3:00 and 5:00 p.m. and between 6:00 and 6:45 p.m. The first time he visited, Craig appeared "happy and goofy like he always is," but he was "really sad" the second time. He appeared intoxicated.
2. Craig Chased the Children in His Truck
When Craig returned downstairs, swearing and slamming the door to an upstairs apartment, he got into a red pickup truck. After taking some time to locate his keys, Craig started the truck and "backed up really fast towards" A.D. and T.D., coming within approximately two feet of them; one or both of them moved out of the way to avoid being hit. Both girls appeared scared and ran to O.D.
Craig next drove even faster toward the children (A.D., T.D., O.D., and O.D.'s siblings M.D. and M.J.) until his pursuit was ultimately stopped when he could not fit his truck through a narrow passageway. With some variation in detail, the children concurred in this account, as follows.
A.D. testified that, after Craig had driven really fast to the parking lot and almost hit her and T.D., she and T.D. ran to an area by a speed bump, where O.D., M.J., E.D., and M.D. joined them. Craig drove really fast and almost hit A.D. again. Only about "ten seconds" elapsed between the first time A.D. was nearly hit and this second time. A.D. ran to her grandmother's apartment, saying that a "guy tried to run me over and that he has been chasing us all around the building and that he choked me." Meanwhile, Craig twice tried to drive his truck through a passageway, but the truck would not fit, so Craig backed out and left. A.D. was crying and nervous when her mother was told what occurred.
According to O.D., Craig drove his truck, faster than he had initially been driving, and approached O.D., A.D., T.D., M.J., and M.D., who positioned themselves between the buildings where their friend E.D. was, behind a staircase near an alleyway or walkway. Unable to fit his pickup through the narrow passageway, Craig collided several times with the side of the apartment buildings.
M.D. testified that Craig drove fast with screeching tires toward her and other children, including M.J., O.D., and E.D., getting approximately six to eight feet away. M.D. moved to the side because Craig was driving directly at her and she did not want to "get r[u]n over." M.D. and the other children ran for safety, while Craig was laughing and calling them "scaredy-cats." After the children reached the walkway, Craig drove his truck at them until he rammed into a bush by the apartment buildings.
M.J. concurred that he ran away from Craig's truck as it was moving towards them, until it got to a place where it would not fit through.
According to T.D., she and O.D. and A.D. were on the sidewalk when Craig drove his truck towards them; he hit a bush as he chased them and they ran between the apartment buildings.
After the narrow passageway ended Craig's pursuit, he backed up and drove around the apartment complex to a spot near the swimming pool. Following a confrontation with the father of M.J., M.D., and O.D., Craig drove away.
3. Craig Assaulted His Dog
At one point, the children observed Craig pick up his dog and throw it to the ground or into the back of the pickup, so that it whimpered or squealed.
4. Investigation and Arrest
East Palo Alto Police Officer Paul Norris arrived at the Light Tree Apartments around 10:20 p.m. to investigate. He was given a video taken by A.D., which showed the truck Craig had been driving, leading to Craig's arrest. M.J. told police that Craig tried to run them over. O.D. told police that Craig chased the children with his pickup and tried to hit them.
B. Verdict and Sentence
The jury found Craig guilty of counts 2 through 6 (assault with a deadly weapon as to each of the five children) and count 7 (cruelty to an animal). The jury found him not guilty of count 1 (assault by means likely to produce great bodily injury on A.D.) and count 8 (kidnapping of A.D.).
In August 2019, the court sentenced Craig to a term of three years, based on a 3-year midterm as to the first count of assault with a deadly weapon and a concurrent 3-year term as to each of the other counts of assault with a deadly weapon. As to the conviction for cruelty to an animal, Craig received a six-month jail sentence with credit for time served. The court also imposed fines and fees, as described post. This appeal followed.
II. DISCUSSION
A. Instructions on Assault With a Deadly Weapon
As to counts 2 through 6, the court instructed the jury on assault with a deadly weapon pursuant to CALCRIM No. 875, as requested by both the prosecution and the defense. CALCRIM No. 875 informs the jury that, to prove a defendant guilty of assault with a deadly weapon, the prosecution must prove that the defendant "did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;" "[t]he defendant did that act willfully;" "[w]hen the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;" and "[w]hen the defendant acted, he/she had the present ability to apply force with a deadly weapon other than a firearm." (Italics added.)
We consider Craig's challenge to the instruction on appeal despite his counsel's request for the instruction. (People v. Mosher (1969) 1 Cal.3d 379, 393.)
The instruction defined a deadly weapon as follows: "A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (Italics added & original italics.)
Craig contends the court erred by including the reference to a weapon that is inherently deadly. An "inherently deadly weapon" is a term of art referring to an object that is deadly in its ordinary use for which it was designed-such as a dirk or dagger. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 318-319 (Stutelberg); People v. Perez (2018) 4 Cal.5th 1055, 1065.) Although a motor vehicle may be used as a deadly weapon (People v. Bipialaka (2019) 34 Cal.App.5th 455, 458), it is not an inherently deadly weapon because it is commonly used for a nonviolent purpose. (People v. Marsh (2019) 37 Cal.App.5th 474, 489.)
The court's instruction included the term "inherently deadly" weapon yet neither defined that term nor informed the jury that a motor vehicle is not an inherently deadly weapon. It therefore allowed the jury to conclude incorrectly that Craig's pickup truck was a deadly weapon because it was an "inherently deadly weapon," thereby potentially bypassing consideration of whether the truck was "used in such a way that it [was] capable of causing and likely to cause death or great bodily injury" (CALCRIM No. 875). Accordingly, the instruction was erroneous. (People v. Aledamat (2019) 8 Cal.5th 1, 7 (Aledamat); Stutelberg, supra, 29 Cal.App.5th at p. 319; see also Bench Notes to CALCRIM No. 875.)
Nonetheless, the error was harmless: it is "clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; see Aledamat, supra, 8 Cal.5th at pp. 9, 13.)
In the first place, the "deadly weapon" element of the charge was not substantially disputed at trial, and to the extent it was discussed by the prosecutor in closing argument, the emphasis was on the size of Craig's truck and the manner in which he used it-driving it swiftly, aiming it at the children, and threatening significant injury. Accordingly, if indeed the jury reached the conclusion that Craig's truck was inherently deadly, it would have been because the jury agreed it was used such that it was, in fact, "capable of causing and likely to cause death or great bodily injury." (CALCRIM No. 875; see Aledamat, supra, 8 Cal.5th at pp. 14-15 [instructional error harmless because, in determining whether box cutter was inherently deadly, the jury necessarily would have found so "in the colloquial sense of the term-i.e. readily capable of inflicting deadly harm-and that defendant used it as a weapon"].)
The prosecutor's closing argument did not delineate between the two ways of establishing a deadly weapon. (See Aledamat, supra, 8 Cal.5th at p. 14 [noting the prosecutor did not argue that there were two ways of proving the weapon was deadly].) On the other hand, the prosecutor did seem to combine these alternatives, perhaps because the issue was not disputed at trial. The prosecutor argued that the truck was a deadly weapon because "a massive truck like that being driven at high speeds is a deadly weapon." The prosecutor further argued: "So what does deadly weapon include? This is the definition. I'll tell you I'm not going to go through it piece by piece. This is not a case where that is at issue here. Clearly, a car is inherently deadly, that size. It's being used in a way where it is chasing children. It's clearly capable of causing great bodily injury or death." (Italics added.) The emphasis was on the size and use of Craig's vehicle.
Moreover, even if the court's instruction led the jury to conclude the truck was a deadly weapon because it was inherently deadly, the jury would have found the truck was a deadly weapon anyway if it had been instructed properly. Craig drove his pickup truck "really fast" at and near five children who had to continually move from its path as he chased them from the parking lot to a narrow passageway. Even when driven slowly, a motor vehicle can cause death or great bodily injury if it collides with a child or the child trips and falls under its wheels. There is no reasonable doubt that the jury found, or would have found, that Craig used the truck in a manner "capable of causing and likely to cause death or great bodily injury" as required by CALCRIM 875. (People v. Brown (2012) 210 Cal.App.4th 1, 13 [ample evidence that defendant used a BB gun in a manner capable of inflicting and likely to inflict great bodily injury, as well as arguments of counsel, left no reasonable doubt the jury found the defendant guilty "on this basis and not because it concluded the BB gun, regardless of the manner in which it was used, was 'inherently dangerous' "].)
Craig argues the error was not harmless because there was evidence the victims were hiding behind the apartment staircase and in an area too narrow for Craig's vehicle to proceed, so there was a reasonable doubt as to whether the truck was capable of and likely to cause death or great bodily injury. Not so. While Craig's assault eventually ended when he could not fit his truck through the narrow passageway, that does not negate the capability and likelihood of death or great bodily injury during his pursuit of the children up to that point. Craig fails to establish reversible error.
Respondent argues that the error was also harmless due to later instructions by the court. During deliberations, the jury requested clarification as follows: "It seems like driving thru a parking lot with a pedestrian around at 10 miles an hour would also qualify as assault with a deadly weapon. Can you clarify for us how this is different? At what point does it become assault?" The court responded: "Any operation of a vehicle by a person knowing facts that would lead a reasonable person to realize an unlawful touching will probably and likely result may be an assault with a deadly weapon. It is for the jury to decide the factual question of whether an instrument that is not an inherently dangerous weapon is used in such a manner which renders it a deadly weapon." (Italics added.) By its question, the jury may have been considering, at the time of its note, whether the truck was inherently deadly; the court's response did not instruct them that the truck was not an inherently deadly weapon, so it did not in itself render the earlier instructional error harmless.
B. Failure to Instruct on Lesser-Included Offense
Craig contends the trial court erred in not instructing the jury to consider simple assault as a lesser included offense of assault with a deadly weapon as charged in counts 2 through 6. The argument is meritless.
A trial court is required to instruct on a lesser included offense, even when (as here) the defense did not request the instruction, if there is substantial evidence to support it. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Simple assault-"an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (§ 240)- is a lesser-included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
Just as we concluded ante that the jury would have necessarily found that Craig's driving rendered his truck a deadly weapon, there was no substantial evidence from which a reasonable jury could conclude that his driving a pickup truck fast toward his child victims was a simple assault-an attempt and present ability to commit a violent injury-without also finding that the assault was committed with a deadly weapon. Craig therefore fails to show error in the absence of an instruction on the lesser-included offense. (People v. Golde (2008) 163 Cal.App.4th 101, 117 [court did not err in failing to instruct on simple assault as a lesser included offense, because "there is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury"].)
C. Failure to Give Unanimity Instruction
Craig argues that the evidence was susceptible of concluding there were multiple discrete acts on which his felony assault charges were based: his driving in a carport area; his driving near a speed bump; and his driving in an area too narrow for his truck to pass. Because the prosecutor did not elect among these acts, Craig contends, the court erred by failing to instruct the jury on the requirement of unanimity. (CALCRIM No. 3500.) We disagree.
1. Law
In a criminal case, the jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) Therefore, "when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.)
A court is not obligated to instruct on unanimity, however, when the case falls within the "continuous course of conduct exception," as where the acts are so closely connected, by law or fact, that they form part of a single transaction and therefore one offense. (People v. Jenkins (1994) 29 Cal.App.4th 287, 298-299 [torture, based on acts occurring over a six-month period]; People v. Thompson (1984) 160 Cal.App.3d 220, 223-224 [spousal battering].) In deciding whether to give the unanimity instruction, the court must determine whether there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or the jury may divide or be uncertain as to the exact way the defendant is guilty of a single discrete crime. (People v. Hernandez (2013) 217 Cal.App.4th 559, 570 (Hernandez) [unanimity instruction should have been given when prosecutor argued both a firearm possession at the victim's home and a later possession of a firearm found under the hood of a vehicle], citing Russo, supra, 25 Cal.4th at p. 1135.)
2. Court's Ruling
Here, Craig requested an instruction on unanimity under CALCRIM No. 3500, which the court declined to give. After Craig was convicted, he moved for a new trial due to the lack of the unanimity instruction. The court denied the motion, reasoning that Craig's conduct was continuous: "This is a case in which what occurred was the defendant pursuing a group of children with his vehicle over a very short period of time and in an apartment complex. This is not a situation in which there were discrete criminal acts committed in different locations at different times. [¶] . . . [¶] The only reason that there were different geographical locations is because the car was moving. But it was moving over a very short expanse, over a very short period of time."
3. Analysis
We agree with the trial court that Craig engaged in a continuous course of conduct, such that no unanimity instruction was required. Craig drove his pickup truck within a limited geographic area inside the apartment complex, targeting some or all of the group of children in an episode that lasted a total of roughly "a minute or two." While some of the children may have been in greater danger at various points of his speedy pursuit, Craig's defense at trial did not distinguish among the three areas of his chase as he does now on appeal; instead, his defense counsel implored that Craig never drove at any of the children, they lied about his doing so, and none of the adults saw him doing it. If the jury were to reject Craig's defense theory as to any aspect of his chase of the children, it necessarily would reject his defense theory as to all of it. Furthermore, the prosecution did not argue to the jury that counts 2 through 6 could be satisfied with any of three separate acts, but explicitly stated in closing that the counts were based on "the entirety of the driving, not just one little chunk of it." As a result, it was not reasonably possible that the jury would have been uncertain as to which "act" of the defendant satisfied the charges: each count was directed to a separate victim, and the question as to each count was whether Craig's driving constituted an attempt, coupled with a present ability, to commit a violent injury on that particular child with a deadly weapon.
Defense counsel began his closing argument with this: "Lynard Craig never laid a finger on that young lady. He never intentionally once drove that vehicle toward any one of those kids. And the prosecution still has not admitted a piece of credible evidence to suggest that he has."
Instructive on this point is People v. Flores (2007) 157 Cal.App.4th 216. There, in a prosecution for assault with a semiautomatic firearm, the defendant argued an unanimity instruction was required because there was bullet damage to separate locations (vehicles and a door). The defendant had fired multiple rounds from his firearm within moments of each other while standing in the same location, in a pattern suggesting he was aiming at a moving target. Under those circumstances, no unanimity instruction was required. (Id. at pp. 222-223.) Similarly here, Craig was driving in a pattern suggesting he was aiming at a moving target-the five children who were attempting to elude him. No unanimity instruction was needed.
Craig argues that the children's testimony was inconsistent as to which of them was endangered at various points of Craig's pursuit. For example, A.D. testified that she was almost hit by Craig's truck near the speed bump and in the carport, but M.D. and O.D. had no memory of that. Some witnesses testified that M.J. was threatened by Craig's vehicle, but M.J. testified that he did not have to "jump out of the way" and did not recall having been threatened by the truck near the carport (as he was running away with his back turned to Craig's pursuing vehicle). But the mere fact that the children did not see or recall the risk posed to others in their group during the seeming chaos of being chased by a truck around their apartment complex does not turn a singular course of conduct into multiple discrete acts. The jury was competent to weigh the evidence and decide, as to each victim, whether the account of Craig's driving constituted an assault with a deadly weapon.
In short, the different phases of Craig's pursuit of the children were so close in time and location that they in effect formed one transaction, leaving the jurors no rational reason to distinguish between them or to pick out one aspect to believe while disbelieving others. (See People v. Leffel (1988) 203 Cal.App.3d 575, 587; People v. Bui (2011) 192 Cal.App.4th 1002, 1010-1011 [acts must be so closely related in" 'time and place that the jurors reasonably must either accept or reject the victim's testimony in toto' "].) Craig fails to establish error.
We conclude there was no error. Even if there had been error, the error would be deemed harmless under the circumstances. The failure to give an unanimity instruction is harmless where the defendant offered the same defense to all criminal acts, and" 'the jury's verdict implies that it did not believe the only defense offered, '" or" '[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence.'" (Hernandez, supra, 217 Cal.App.4th at p. 577.) Here, the jury did not believe Craig's only defense-that the children were lying and he never drove after any of them.
D. Cumulative Prejudice
Craig contends the cumulative prejudice of the claimed instructional errors requires reversal. Here, we discern only one error, discussed ante, and it does not require reversal. There being no other errors, there is no cumulative prejudice requiring reversal.
E. Ability to Pay Fines and Fees
Craig was convicted of five felony counts and one misdemeanor count. At sentencing, the court imposed the mandatory minimum restitution fine of $300 (§ 1202.4, subd. (b)), a $300 parole revocation fine, suspended (§ 1202.45), a court operations assessment of $200 (§ 1465.8), and criminal conviction assessments of $150 (Govt. Code, § 70373). The trial court did not inquire or make findings as to Craig's ability to pay.
The abstract of judgment shows fines and fees in the amount of $680, but that appears to be incorrect because the total of the fines and fees listed in the abstract of judgment is only $580. In addition, the abstract of judgment shows a court operations assessment of $160 under section 1465.8 and a conviction assessment of $120 under Government Code section 70373, which are different than the oral pronouncements of the court. The abstract of judgment is hereby corrected to conform to the oral pronouncement of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-386 [if there is a discrepancy, the oral pronouncement controls, and the appellate court has inherent power to correct the clerical error].)
Craig contends we should remand to the trial court for consideration of his ability to pay the fines and fees in light of People v. Cowan (2020) 47 Cal.App.5th 32 (Cowan), review granted June 17, 2020, S261952. Cowan held that, under the excessive fines clauses of the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution, "a sentencing court may not impose court operations or facilities assessments or restitution fines without giving the defendant, on request, an opportunity to present evidence and argument why such monetary exactions exceed his ability to pay." (Id. at p. 48.) Craig expressly disavows any reliance on the due process analysis of People v. Dueñas (2019) 30 Cal.App.5th 1157.
Pending in our Supreme Court is People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844, on the issue of whether a trial court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments, and if so, which party bears the burden of proof regarding the defendant's inability to pay.
Craig fails to establish any basis for remand. In the first place, a defendant has the burden to raise the issue and "present evidence of his or her inability to pay the amounts" in the trial court. (People v. Castellano (2019) 33 Cal.App.5th 485, 490; see § 1202.4, subd. (d); People v. Santos (2019) 38 Cal.App.5th 923, 934.) Craig did not object to the fines and fees when they were imposed, on any ground. And while Craig now claims that Cowan is new authority, the Eighth Amendment has been around for over 200 years. (See Timbs v. Indiana (2019) 139 S.Ct. 682, 686-689 [excessive fines clause of the Eighth Amendment is incorporated to the states; ruling issued in February 2019, months before Craig's sentencing].) Indeed, the court in Cowan made clear that the defendant in that case had objected to fines and fees based on his inability to pay, and that the obligation to give the defendant an opportunity to present evidence and argument was conditioned on the defendant "request[ing]" it. (Cowan, supra, 47 Cal.App.5th at pp. 36, 47.) Any objection under the state and federal excessive fines clauses was available to Craig at the time of sentencing and has been forfeited. People v. Baker (2018) 20 Cal.App.5th 711, 720.)
In any event, remand would be futile. A fine is excessive under the Eighth Amendment "if it is grossly disproportional to the gravity of a defendant's offense." (United States v. Bajakajian (1998) 524 U.S. 321, 334.) A court considers four factors: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 (Aviles).) "While ability to pay may be part of the proportionality analysis, it is not the only factor." (Aviles, at p. 1070.)
Here, Craig addresses only the ability to pay factor and therefore fails to establish that the fines and fees were disproportionate to his crimes. On the record before us, no gross disproportionality appears. Craig drove his truck at five children, risked causing them great bodily injury, scared them, and purportedly caused their parents anxiety and made the children afraid to play in their apartment complex. The fines and fees, meanwhile, were imposed at the mere statutory minimum. As to the restitution fund fine under section 1202.4, the statutory range is $300 to $10,000 per felony, and the court "may determine the amount of the fine as the product of the minimum fine . . . 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." (§ 1202.4, subd. (b)(1), (2).) Instead, the court imposed only the statutory minimum of $300. Because Craig has failed to establish that the fines and fees are disproportionate to his offenses, he fails to establish any error in their imposition or cause for remand.
Nor does the record suggest Craig would be unable to pay his assessments and fine. There is no evidence he had a past history of being unable to pay court assessments. To the contrary, he had a history of employment doing warehouse, restaurant, customer service, and construction work; he had completed high school and had technical school training in carpentry and phlebotomy; and he denied ever having any serious illness or injury. According to the probation officer's report, "The defendant is able-bodied and therefore has the ability to pay restitution if ordered by the Court." (See § 1202.4, subd. (d) [in considering a defendant's inability to pay as a factor in setting the amount of the fine in excess of the minimum fine, "[c]onsideration of a defendant's inability to pay may include his or her future earning capacity"].)
III. DISPOSITION
The judgment is affirmed. The abstract of judgment is corrected to conform to the oral pronouncement of judgment, such that the restitution fine (§ 1202.4, subd. (b)) is $300, the parole revocation fine, suspended (§ 1202.45) is $300, the court operations assessment (§ 1465.8) is $200, and the criminal conviction assessments (Govt. Code, § 70373) amount to $150, for total fines and fees of $650.
We concur. JACKSON, P.J., BURNS, J.