Opinion
A148237
09-27-2018
THE PEOPLE, Plaintiff and Respondent, v. DAWN DEDRICK ET AL., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5122614)
A jury convicted defendants Damon Davis and Dawn Dedrick of second degree burglary of a vehicle and possession of burglary tools. On appeal, they contend that insufficient evidence supports the burglary convictions, the prosecutor engaged in prejudicial misconduct during closing argument, and the trial court erred by ordering them to pay certain fines and fees, including a civil assessment of $500 for attorney fees. We affirm, except we strike a $25 fee imposed on both defendants and remand for the court to address other minor fee- and fine-related issues.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Early on the morning of December 15, 2015, the owner of a Chrysler left his San Ramon apartment to smoke and noticed that his car's trunk was open. When he went to investigate, he saw two people taking property out of his car. He yelled to get their attention, but they got into a maroon car and drove away, and he then called 911. He noticed that all of the Chrysler's doors were unlocked and a moving box and a garbage bag containing some of his belongings were missing. San Ramon Police Officer Jeffrey Hahn responded to the 911 call.
Meanwhile, another police officer pulled over a maroon car matching the description the Chrysler's owner had provided. Dedrick was driving the car, and Davis was a passenger. A moving box and a garbage bag were in the backseat. A search of the vehicle revealed a number of tools that are commonly used to "gain access to a vehicle and either burglarize it or steal it," including a slim jim, bolt cutters, a crow bar, a window punch, and pliers. Davis had a prescription bottle with the Chrysler's owner's name on it in his coat pocket. Officer Hahn took the Chrysler's owner to where the maroon car was pulled over, and the owner identified that car and his belongings.
A slim jim is a tool that is "lowered down to where the glass and the door meet [on a vehicle] and then moved up and down in an effort to disable the locking mechanism of the vehicle."
The jury convicted Davis and Dedrick of second degree burglary of a vehicle, a felony, and possession of burglary tools, a misdemeanor. The trial court imposed on Davis a split sentence of 16 months in county jail and eight months on mandatory supervision for the felony and a concurrent term of 30 days in jail for the misdemeanor. He was awarded 241 days of presentence credits. The court suspended imposition of Dedrick's sentence and placed her on probation for three years, with the condition that she serve one year in jail. She was also awarded 241 days of presentence credits. Finally, the court imposed on both defendants various fines and fees, including a $25 "security fee," a $41 "theft fee," and $500 in attorney fees.
Defendants were convicted under Penal Code sections 459 and 460, subdivision (b) (burglary) and section 466 (possession of burglary tools). All further statutory references are to the Penal Code unless otherwise noted.
II.
DISCUSSION
A. Substantial Evidence Was Presented that the Chrysler Was Locked when Defendants Entered It.
Defendants first contend that their convictions for second degree burglary of a vehicle cannot stand because there was insufficient evidence that the Chrysler was locked when they entered it. Their argument stems from section 459, which defines auto burglary as an entry into " 'any . . . vehicle . . . when the doors are locked . . . with intent to commit grand or petit larceny or any felony.' " (People v. Allen (2001) 86 Cal.App.4th 909, 914, quoting § 459, italics omitted.) As the Attorney General agrees, a conviction under this statute requires proof that the vehicle's doors were locked as an essential element of the crime. (In re James B. (2003) 109 Cal.App.4th 862, 868.)
In assessing defendants' claims, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] 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. . . ." A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' " (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
Applying these standards here, we have little trouble concluding that the jury's determination that the Chrysler's doors were locked at the time defendants entered the car was supported by ample, and certainly substantial, evidence. To begin with, the Chrysler's owner testified that he locked the car after he had last been inside it, about a week before the burglary. On that occasion, after realizing that the car's battery was dead, he used a key to manually lock the driver's-side door. He testified that because the vehicle's locking system is automatic, locking one door "usually locks all the other doors." When he locked the car the week before the burglary, he heard all the locks click, and he confirmed the driver's-side door was locked. He testified that he normally locks his car when he leaves it and checks to ensure the driver's door is locked because "[i]f that's locked, that's usually—everything else is locked."
The Chrysler's owner admitted during his testimony that he did not visually check to see if all the doors were locked after he manually locked the driver's-side door. Shortly before trial, he told the prosecutor that he was "positive" his car had been locked, but at trial he testified he was about "ninety - 80, 90 percent" sure that manually locking one door locks all of the doors when the Chrysler's battery is dead. He explained that he had no "[r]eason to believe" any of the Chrysler's doors were unlocked, but it was "possible" because, in his words, "Can you be positive of anything, really?"
In addition to the owner's testimony, other evidence supported the conclusion that the Chrysler was locked when defendants entered it. A recording of the 911 call was played, in which the Chrysler's owner reported his car was " 'broken into.' " At trial, he explained that he had used that phrase because his "car was locked" after he was last inside it. Similarly, Officer Hahn indicated that when he responded to the 911 call, the Chrysler's owner was "adamant" that the car had been locked.
In addition, Officer Hahn noticed that condensation on the front passenger's window and door of the Chrysler had been rubbed off. Although there were no signs of forced entry, the rub marks led him to believe that a slim jim could have been used to open the door. And when defendants were stopped shortly after the 911 call was made, they had various burglary tools, including a slim jim.
Davis argues that a juror could have reasonably inferred "that the doors of the car were not locked, that [defendants] had not employed a slim jim to break in, and that [Officer] Hahn had invented additional, helpful facts in order to bolster the prosecution's failing case." And Dedrick argues that because the prosecution did not present "easily obtained evidence about the locking system" of the Chrysler, "[n]o reasonable juror could have found that [the owner's] testimony proved beyond a reasonable doubt that the car was locked." These arguments misconstrue our standard of review. Regardless of whether evidence was presented that could have supported a different determination, the issue is whether sufficient evidence supports the determination the jury actually made. "When a jury's verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion." (People v. Brown (1984) 150 Cal.App.3d 968, 970.) Reviewing the evidence in the light most favorable to the prosecution, as we must, we simply cannot conclude " ' " 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' " (People v. Penunuri, supra, 5 Cal.5th at p. 142.) Accordingly, we reject defendants' claim.
B. None of Defendants' Claims of Prosecutorial Misconduct Warrant Reversal.
Defendants next contend that the prosecutor made remarks during closing argument that amounted to prejudicial misconduct. We are not persuaded.
1. General legal standards.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is [nonetheless] prosecutorial misconduct under state law . . . if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) When, as here, "the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Ibid.) Although "the usual formulation of the state-law standard" may suggest otherwise, "the prosecutor's behavior need not be in bad faith," and the doctrine is more accurately described as " 'prosecutorial error.' " (People v. Rodriguez (2018) 26 Cal.App.5th 890, 904-905 (Rodriguez).)
A claim of prosecutorial error involving comments before the jury is generally forfeited unless the defendant both timely objects and " ' " 'request[s] that the jury be admonished to disregard the impropriety.' " ' " (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) In addition, improper conduct that does not rise to the level of a federal due process violation does not require reversal unless it is reasonably probable that the defendant would have obtained a more favorable result had the prosecutor refrained from the behavior. (People v. Haskett (1982) 30 Cal.3d 841, 866; People v. Williams (2009) 170 Cal.App.4th 587, 637-638.)
"Regarding the scope of permissible prosecutorial argument, . . . ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) With this law in mind, we turn to assess the specific comments by the prosecutor about which defendants complain.
2. Remarks challenged by both defendants.
First, defendants take issue with the prosecutor's statement that they were "a couple of experienced burglars." We agree with the Attorney General that this claim was forfeited, because the trial court sustained Dedrick's objection to the comment and defense counsel did not request an admonition. The failure to request an admonition may be excused if counsel makes an objection and the trial court immediately overrules it, thus depriving counsel of a realistic opportunity to ask for an admonition. (Rodriguez, supra, 26 Cal.App.5th at p. 904.) Here, however, the objection was sustained, sending the message to the jury that the comment was improper, and defendants failed to exercise the opportunity they had to ask for a further admonition. Nor is this an instance in which the claim is preserved despite this failure because " ' "an admonition would not have cured the harm caused by the misconduct," ' " as Dedrick argues. (People v. Cunningham, supra, 25 Cal.4th at pp. 1000-1001.) The prosecutor's comment "was not 'so outrageous or inherently prejudicial that an admonition could not have cured it.' " (People v. Valdez (2004) 32 Cal.4th 73, 123 [addressing prosecutor's elicitation of testimony that defendant had been in jail for another crime].)
Even if the claim had been preserved, we would reject it on its merits. Although the remark was concerning because it suggested that defendants had committed prior crimes that were not in evidence, it was not so deceptive or reprehensible as to require reversal. Not only was the objection to the remark sustained, the jury was explicitly instructed that nothing argued by the attorneys was evidence, an instruction we presume it understood and followed. (See People v. Edwards (2013) 57 Cal.4th 658, 723.) We conclude there is no reasonable likelihood that the jury inappropriately relied on the challenged remark.
Next, defendants complain about a remark by the prosecutor that he had "never seen anyone [he knew] with a slim jim," and Davis also challenges a follow-up remark that "[s]lim jims are often used by [AAA] employees, by police officers, people with training on how to use them." Dedrick maintains that the prosecutor engaged in improper vouching, and Davis contends that, "while alone not terribly prejudicial," these comments, along with the other alleged instances of misconduct, "worked to paint a picture of [defendants] as bad actors who should be punished, whether or not the prosecution had proved each element beyond a reasonable doubt." Again, we are not persuaded.
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' [his or] her comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 971.)
Here, the trial court responded to the prosecutor's first remark by immediately stating, "Counsel, that's improper vouching. The jury is to disregard the comment about what he's seen. He's not a witness in the case." Defendants offer no compelling reasons why this admonishment failed to cure any error. (See People v. Haskett, supra, 30 Cal.3d at p. 854 [trial court exercises discretion in determining whether an error can be cured by admonition or instruction].) Dedrick attempts to analogize this case to People v. Alvarado (2006) 141 Cal.App.4th 1577 (Alvarado), in which the Court of Appeal concluded that a prosecutor's improper vouching could not have been cured with an admonishment. (Id. at p. 1581.) During closing argument, the prosecutor in that case stated, " 'I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.' " (Ibid.) Although the prosecutor's remarks here about his experience with slim jims may have been imprudent, they were nothing like the comments in Alvarado, which explicitly leveraged the prestige of the district attorney's office and amounted to a personal attestation by the prosecutor about the defendant's guilt. There was no prejudicial error.
3. Additional remarks to which Davis objects.
Davis claims that the prosecutor improperly told the jurors they could rely on their "common sense," a phrase the prosecutor used in discussing a hypothetical involving whether it is reasonable to infer from circumstantial evidence that someone found with burglary tools early in the morning may be guilty of a crime. This claim was also forfeited because there was no contemporaneous objection or request for a jury admonition. (Rodriguez, supra, 26 Cal.App.5th at pp. 903-904.)
Even if the contention had been preserved, however, we would reject it. We agree with the Attorney General that the prosecutor's comment cannot be construed as an entreaty for the jury to ignore the reasonable-doubt standard, on which the jury was explicitly instructed. The prosecutor used the phrase "common sense" in the course of explaining to the jury that "when considering circumstantial evidence, [it] must accept only reasonable conclusions and reject any that are unreasonable," not in reference to the reasonable-doubt standard. And at least when not done in connection with that standard, "[t]o tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror's background, experience[,] and reasoning must necessarily provide the backdrop for the juror's decisionmaking, whether instructed or not." (People v. Campos (2007) 156 Cal.App.4th 1228, 1240; see also People v. Romero (2008) 44 Cal.4th 386, 416; People v. Venegas (1998) 18 Cal.4th 47, 80.)
Davis also complains that the prosecutor's use of a hypothetical constituted misconduct because it did not "require[] proof that the car doors were locked." But the prosecutor used the hypothetical in connection with a discussion about inferences to be made from circumstantial evidence, not a discussion of burglary's elements. Davis's reliance on People v. Centeno (2014) 60 Cal.4th 659 is misplaced. In Centeno, the prosecutor presented a hypothetical and a chart that "had nothing to do with the case or the evidence before the jury." (Id. at p. 671.) Here, in contrast, the hypothetical was directly based on the same tools that defendants had when arrested.
In addition, Davis objects that the prosecutor misrepresented the evidence by suggesting that Officer Hahn mentioned the smudge marks possibly made by the slim jim in his written report, when the officer in fact had testified that his report did not refer to the smudge marks. We are not persuaded that the comment constituted prosecutorial error. What the prosecutor actually said was that Officer Hahn "looked at the vehicle, took the report and sees some marks on the passenger front door window." We disagree with Davis that this comment constituted a representation that Officer Hahn had testified that he referred to the marks in his written report.
In any event, the trial court responded to an objection to the remark by admonishing the jury that "[s]tatements of all attorneys are not evidence. The attorneys are allowed to argue that the facts establish their theory of the case, but you ultimately decide what the facts are." Davis argues that this admonition was "not strong enough" because Officer Hahn unambiguously testified that he did not mention the smudge marks in his report, and the court therefore "needed to remind the jury that [the officer] had admitted never recording anything about smudges in his . . . report." Davis offers no authority to support the notion that the court had to reiterate Officer Hahn's testimony on this topic to effectively admonish the jury, and we reject this argument.
Lastly, Davis contends that the prosecutor improperly asked the jurors to put themselves in the place of the victim by saying, "We all know we're not supposed to leave visible things in our car because that's what . . . car burglars are looking [for]," as well as by saying, "We have a person like all of us in this room who said 'my car was locked.' " Again, this argument was forfeited because neither defendant objected to the comment or sought a jury admonition. (Rodriguez, supra, 26 Cal.App.5th at pp. 903-904.)
Even if the claim had been preserved, we would conclude that the comments did not constitute prosecutorial error. " ' "It is, of course, improper to make arguments to the jury that give it the impression that 'emotion may reign over reason,' and to present 'irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.' [Citation.]" ' [Citation.] 'It has long been settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial.' " (People v. Vance (2010) 188 Cal.App.4th 1182, 1192.) But the comments here cannot be construed as suggesting that the jury could decide defendants' guilt based on emotion rather than reason. The part of the remark about general awareness that one should not leave items in vehicles could not have generated much sympathy for the Chrysler's owner, since the evidence was that he did leave items in his car. And the vague comment that the owner was "like all of us" appears to have been directed more at the owner's level of certainty about having locked his door than at his status as a victim. If these comments generated sympathy towards him, it could not have been much. And, again, the jury was explicitly instructed that nothing said by the attorneys was evidence. (See People v. Fuiava (2012) 53 Cal.4th 622, 682.) In short, we reject all the claims of prosecutorial error.
C. Irregularities in the Imposition of Certain Charges Require a Remand.
Defendants challenge the imposition of a $25 "security fee" and a $41 "theft fee" on both of them, based on the trial court's failure to specify the statutory basis for these charges. For reasons we explain below, we strike the $25 fees and remand for the trial court to specify the statutory basis for those fees, if it chooses to reimpose them, as well as the statutory basis for the components of the $41 charge.
1. $25 "security fee."
Davis contends that the trial court erred by not specifying the statutory basis for the $25 "security fee," and he joins Dedrick's argument that this fee was not authorized under section 1465.8, which requires that a defendant be charged $40 for each conviction "[t]o assist in funding court operations." (§ 1465.8, subd. (a)(1).) The basis for this charge is not apparent from the record, and we strike it as to both defendants and remand for the court to consider whether it lawfully can be imposed.
The form orders placing Davis on mandatory supervision and Dedrick on probation characterize the $25 fee as an "O.R." fee. A $25 "administrative screening fee" must be "collected from each person arrested and released on his or her own recognizance upon conviction of any criminal offense related to the arrest other than an infraction," although "a lesser fee" may be imposed "upon a showing that the defendant is unable to pay the full amount." (§ 1463.07; Gov. Code, § 29550, subd. (f).) Thus, it is reasonable to assume that the $25 "O.R." fee referred to on the form orders is the administrative screening fee under these statutes.
Davis's abstract of judgment does not include a $25 fee.
In imposing the $25 fee on defendants, however, the trial court referred to it only as a "security fee," which is too ambiguous for us to conclude that the court meant to refer to the administrative screening fee. Nor can the clerk's checking of boxes indicating a $25 "O.R." fee was imposed substitute for the court's oral pronouncement to that effect. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Moreover, according to the probation reports, Davis and Dedrick were continuously in custody between their arrests for the burglary and their sentencing, so it is hardly clear that an administrative screening fee could be lawfully imposed on either of them. Therefore, we will strike these fees and remand for the court to reconsider whether to impose the fees and to specify their statutory basis.
2. $41 "theft fee."
Defendants concede that a $10 fine was proper under section 1202.5, which requires the imposition of a $10 fine upon conviction of certain theft-related offenses. Davis claims that the trial court erred by not specifying "the statutory basis for . . . penalty assessments [it] levied on the theft fee," and Dedrick contends that her trial counsel rendered ineffective assistance by failing to object to the fee because with penalty assessments the proper amount was $22, not $41. We conclude that the $41 amount accurately reflects the required penalty assessments on the $10 fine, and we therefore reject Dedrick's claim. We agree with Davis that the amounts and statutory bases for the penalty assessments must be specified, however, and direct the court to specify them on remand.
An additional 310 percent ($31) is added as penalty assessments to a $10 fine. This 310 percent increase is the result of seven different statutory penalty assessments, not just the two Dedrick identifies: (1) a 100 percent state penalty under section 1464, subdivision (a)(1); (2) a 20 percent state surcharge under section 1465.7, subdivision (a); (3) a 50 percent court-construction penalty under Government Code section 70372, subdivision (a)(1); (4) a 70 percent county penalty under Government Code section 76000, subdivision (a)(1); (5) a 20 percent emergency-medical-services penalty under Government Code section 76000.5, subdivision (a)(1); (6) a 10 percent Proposition 69 DNA penalty under Government Code section 76104.6, subdivision (a)(1); and (7) a 40 percent state-only DNA penalty under Government Code section 76104.7, subdivision (a). Thus, it is reasonable to assume that the $41 "theft fee" was composed of the $10 fine under section 1202.5 and an additional $31 in required penalty assessments.
Most current penalty assessments are legislatively expressed as a certain dollar amount for every $10 of the charge subject to them, but for the sake of simplicity we refer to penalty assessments in terms of the percentage by which they increase every $10 of a subject charge.
Nevertheless, we recognize other decisions have required sentencing courts to specify the statutory basis for "all the fees, fines[,] and penalties on the record" so that they can be included in the abstract of judgment, permitting the Department of Corrections and Rehabilitation to "fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency" and "assist[ing] state and local agencies in their collection efforts." (People v. High (2004) 119 Cal.App.4th 1192, 1200; accord People v. Hamed (2013) 221 Cal.App.4th 928, 939-940.) Although a court is not necessarily required to specify every penalty assessment in its oral pronouncement, the pronouncement should at least incorporate, by reference to the probation report or another document, a list of "the amounts and statutory bases for the penalty assessments." (Hamed, at pp. 939-940.)
Here, neither the probation reports nor any other sentencing documents in the record even mentioned the $10 fine under section 1202.5, much less specified the penalty assessments that applied to it. On remand, we direct the trial court to specify the amounts and statutory bases of the penalty assessments applicable to the $10 fine, as well as the statutory basis of the fine itself, and ensure that this information is included in Davis's abstract of judgment and mandatory supervision order and Dedrick's probation order.
D. Defendants Fail to Show that Their Trial Counsel's Failure to Object to the Imposition of Attorney Fees Constituted Ineffective Assistance.
We last turn to consider defendants' contention that their trial attorneys were ineffective by failing to object to a $500 civil assessment for attorney fees under section 987.8 imposed on both defendants. Because counsel could have had a reasonable tactical reason for not objecting, we must reject this claim.
Although only Dedrick explicitly challenges the imposition of attorney fees, Davis "join[ed] all portions of any arguments made by . . . Dedrick . . . which may benefit him."
The law governing a claim of ineffective assistance of counsel is well-settled. The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Doolin (2009) 45 Cal.4th 390, 417.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno, supra, 60 Cal.4th at p. 674.)
The first Strickland prong requires a defendant to show that "counsel's performance . . . fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) In evaluating this prong, "a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) " ' "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.) Because the presumption of counsel's competence can usually be rebutted only with evidence outside the record, a reversal on direct appeal is not warranted unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Mai, at p. 1009.)
Section 987.8, subdivision (b) provides that if a defendant receives legal assistance from appointed counsel, "upon conclusion of the criminal proceedings in the trial court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof" or, alternatively, "may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." Then, "[i]f the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability." (§ 987.8, subd. (e)(2).)
Defendants claim that their trial attorneys should have objected to the imposition of attorney fees because not only was there no hearing on their ability to pay, the fees were imposed even though the trial court "made a formal finding of [their] inability to pay fees and fines." It is true that no hearing or appearance before a county officer occurred. It is also true that the court found that Davis had an "inability to pay" the "$564 CJA fee," which apparently referred to a criminal justice administrative fee under Government Code section 29550, subdivision (d), and that Dedrick had an "inability to pay" both that fee and "the probation report preparation fee." Even assuming, without deciding, that the court thus effectively found that defendants were unable to pay any fees requiring an ability-to-pay determination, we cannot conclude that defendants' attorneys rendered ineffective assistance by failing to object. The record does not rule out the possibility that defense counsel had a reasonable tactical reason for failing to object, such as knowledge of their clients' financial situation that would establish an ability to pay the $500 assessments. As a result, defendants fail to demonstrate that they received ineffective assistance of counsel. (See People v. Mai, supra, 57 Cal.4th at p. 1009.)
In making their claim, defendants assume that the underlying issue of the lawfulness of the attorney fees was forfeited under People v. Aguilar (2015) 60 Cal.4th 862, 864, which held that the failure to object to the imposition of fees under section 987.8 precludes an appellate challenge to them. Citing People v. Viray (2005) 134 Cal.App.4th 1186, Aguilar left open the possibility that no objection is required "when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part." (Aguilar, at p. 868, fn. 4.) In Viray, however, an actual conflict was apparent because, unlike here, the defendant's trial counsel requested that the fees be assessed. (See Viray, at p. 1216.)
In making this assumption, we do not address whether the imposition of attorney fees under section 987.8 despite a finding of inability to pay is an unauthorized sentence that requires no objection to preserve an appellate challenge. (See People v. Scott (1994) 9 Cal.4th 331, 354.) Defendants neither make any such argument nor contend that their failure to object should otherwise be excused. --------
III.
DISPOSITION
The judgment as to Davis, the order placing Davis on mandatory supervision, and the order placing Dedrick on probation are affirmed, except that the $25 fees reflected in the latter two orders are stricken. The matter is remanded with directions for the trial court to consider whether a $25 fee may be lawfully reimposed on either defendant and, if so, to specify the statutory basis for the fee. The court is also directed to modify the judgment and two orders to detail the amounts and statutory bases of the components of the $41 fine and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.