Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF511999.
McAdams, J.
Defendants Larry and Joey Howard were convicted by a jury of second degree robbery. (Pen. Code §§ 211/212.5, subd. (c).) After a bifurcated court trial, Larry Howard was found to have been on bail at the time the robbery was committed. (§ 12022.1.) Defendants were granted probation.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, Joey Howard contends there was insufficient evidence to find him guilty of robbery; that the trial court failed to adequately respond to the jury’s questions during deliberation about his liability for robbery; that the trial court’s uneven rulings on objections during closing arguments deprived him of a fair trial; and that the trial court erroneously denied his Wheeler-Batson motion.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Larry Howard joins in challenging the court’s rulings on the Wheeler-Batson motion and during closing arguments. He also argues that the trial court should have instructed on attempted robbery as to him, and that other instructions confused and misled the jury. Finally, he argues that the court improperly imposed attorney fees and that the probation condition barring association with gang members is constitutionally over broad.
We find merit in Larry Howard’s contention regarding the probation condition. Therefore, we modify the judgment with respect to the probation condition and, as modified, we affirm the judgment.
STATEMENT OF FACTS
On July 23, 2005, Brian Ramsdell and Nick Sordello left Ramsdell’s home around 10:00 p.m. to walk to Safeway to buy shaving cream which they planned to spray on the windshield of a friend’s car as a prank. Ramsdell had $350 in his wallet. He paid for the shaving cream. As he left the store, he had a plastic bag containing the shaving cream wrapped around his arm, his change in his hand, and his wallet in the other hand. As Ramsdell and Sordello jogged across the parking lot, Ramsdell heard a male voice shout “Hey” loudly. They stopped running, and a black Mustang pulled up beside them. They saw two people, the driver and a passenger.
The driver, defendant Joey Howard, stopped the car about six or seven feet from the teenagers. The driver’s side of the car was closest to them. The driver had his window down and said to them, “Hey, do you have any bud?” meaning marijuana. Ramsdell first said “no, ” and then asked if they knew Shawn Mooney, a friend who used to do marijuana. Ramsdell heard female laughter coming from the backseat. Ramsdell could not see anyone. Sordello could see there were two girls in the backseat. One of them said, “I know Shawn.”
Ramsdell chatted with the people in the car for a bit. At one point, as a joke, Ramsdell gave the driver a dollar bill.
Ramsdell began to feel uncomfortable and told the people in the car, “Hey, I got to go.” To Sordello he said, “Let’s get out of here” or “let’s go.” He took off running, and never looked back. As he ran away from the car, Ramsdell was trying to put his wallet in his pocket. However, he was holding the wallet upside down and the money fell out.
Sordello was about 15 feet from Ramsdell at the time and called out to him to wait, but Ramsell did not respond. Sordello tried to pick up the money, bending down on one knee and holding the money to his chest. He was nervous because he saw that the driver and the passenger had gotten out of the car. They were both running or jogging in his direction. The driver stopped a couple of feet in front of Sordello and was also trying to collect the money. The passenger was coming in back of him, and then Sordello lost sight of him. Neither one spoke to the other. Sordello was then struck in the back of the head. He turned and saw defendant Larry Howard standing there. He stood up, dropped all the money except a $20 bill rolled up in the palm of his hand and sprinted away. He did so because he was afraid the passenger would hit him again and he did not want to be followed. As he sprinted forward he did not look back; he did not see what happened to the money.
In the meantime, Ramsdell realized that Sordello was not behind him and stopped running. Sordello ran up to him about five seconds later, looking scared and upset. According to Ramsdell, Sordello told him that the money had fallen out of Ramsdell’s pocket, and that when Sordello went to gather it up the driver came of out of the car and picked some up. Then the passenger came out of the car and hit Sordello in the back of the head, so Sordello dropped the money. Sordello gave the $20 bill back to Ramsdell and the boys called the police. When the police arrived, the boys described the car, the driver and the passenger.
Shortly thereafter, the police spotted the car and detained its occupants. One of the girls was wrapped in a blanket. Both girls were pat-searched for weapons but more extensive searches were not conducted because no female police officer was available to conduct them.
Ramsdell and Sordello identified the car and the defendants at the scene. The money was never found.
DISCUSSION
1. Wheeler-Batson Motion
Defendants contend that the prosecutor’s use of three peremptory challenges to remove three Hispanic-surnamed women from the jury panel violated their federal constitutional right to equal protection and their state constitutional right to a jury chosen from a representative cross-section of the community.
A. Legal Principles
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.” (Wheeler, supra, 22 Cal.3d at pp. 276-277; see People v. Griffin (2004) 33 Cal.4th 536, 553.) Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, supra, 476 U.S. at p. 88; see also People v. Cleveland (2004) 32 Cal.4th 704, 732.)” (People v. Avila (2006) 38 Cal.4th 491, 541.)
In Johnson v. California (2005) 545 U.S. 162, the United States Supreme Court recently set forth the procedure for evaluating a defendant’s claim that the prosecutor has made discriminatory use of peremptory challenges. As summarized by our Supreme Court in People v. Gray (2005) 37 Cal.4th 168, the process is as follows. “ ‘ First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” ’ [Citations.] [¶] In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ (People v. Boyette (2002) 29 Cal.4th 381, 422.) The high court recently explained that ‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ (Johnson v. California, supra, 545 U.S. at p. 170.) ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.” ’ (Id. at p. 168, fn. 4.) [¶] We explained in People v. Howard (1992) 1 Cal.4th 1132, 1155, that when a trial court denies a Wheeler motion finding the objector failed to make a prima facie case of group bias, the reviewing court should consider the entire record of voir dire of the challenged jurors. (See People v. Davenport (1995) 11 Cal.4th 1171, 1201.) That view is consistent with the high court’s recent reiteration of the applicable rules, which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the ‘totality of the relevant facts.’ (Johnson v. California, supra, 545 U.S. at p. 168.)” (Grey, at p. 186.)
“We review the trial court’s ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ ” (People v. Avila, supra, 38 Cal.4th at p. 541.)
B. Factual Background
The prosecutor exercised four peremptory challenges. The first three were against Hispanic-surnamed women: Ms. Ceballos, Ms. Gomez and Ms. Moreno. After the third peremptory challenge (to Ms. Moreno), defense counsel for Joey Howard asked to approach the bench. The prosecutor passed on the fourth round of peremptory challenges. At the next recess, the trial court conducted a brief hearing on the defendants’ “Wheeler motion” brought at the bench conference. Defense counsel argued that the prosecutor had used his first three peremptory challenges on jurors who appeared to be Hispanic women, leaving at least one, and possibly two, Hispanic persons on the jury panel of 19 people who had heretofore been seated. The court responded: “Well, I don’t see a basis for the motion. But out of an abundance of caution – this may not be the procedure that the high courts have set out, but I’m going to go ahead and let [the prosecutor], out of an abundance of caution, state his reasons for the excusing of those three particular people.” When the prosecutor objected that defendants had “failed to make their Wheeler showing, ” the trial court told him: “I’m giving you the opportunity, so which means you better make the Wheeler showing. I don’t like the Wheeler procedure any more than anybody else does. But, out of an abundance of caution, if there’s a conviction, I don’t want it to get reversed because they’re second-guessing me.”
There was dispute as to whether prospective juror No. 11, a man, was of Hispanic or Italian ancestry. The court assumed he was of Hispanic descent.
With respect to Ms. Gomez, the prosecutor then stated: “Her son is currently in custody. That ended it. The second she said that she was gone. … I’m not going to leave anybody on the jury who[se] child is in custody when I have two young defendants that may remind her of her own son.” As to Ms. Ceballos, “it was basically the same grounds. Her son was arrested, charged. She has one son who has a mental health illness that was arrested for theft. She has another son who’s currently in jail, a drug-related offense. … Again, that ended it. I didn’t need to hear anything else about her.” Finally, as to Ms. Moreno, the prosecutor explained: “[W]e have a young woman with absolutely no life experience whatsoever, with no job, not even going to school. I just don’t want to leave somebody on the jury who has no life experience, who … [is] just –just hanging out. It’s not somebody I consider a pillar of the community, who’s going to spend time and care about a jury.” Defense counsel attempted to remind the court that Ms. Moreno worked in a department store, but the court did not agree.
The court ruled it was “not necessarily finding that the defense counsel made the sufficient Wheeler showing, but the court finds that the district attorney was proper in their reasons given for excusing those three jurors.” (Italics added.) The jury, as seated, included at least two women, juror number 8 and juror number 12. At least one, and possibly two, Hispanic persons sat on the jury. One of the seated alternates was a woman.
C. Analysis
In this case, there is no dispute that the Wheeler/Batson motion was timely raised, that the record is arguably as complete as feasible, and that the persons excluded – Hispanic women – are members of a cognizable group or groups based on ethnic ancestry and gender. (See People v. Gray, supra, 37 Cal.4th at p. 187.) In addition, although defendants are not Hispanic-surnamed, the victims reported to the 911 operator that the robbers were “Mexican” and, in fact, defendants’ grandfather is Hispanic-surnamed.
Here, the trial court never definitively ruled that no prima facie case had been made. “When a trial court, after a Wheeler/Batson motion has been made, requests the prosecution to justify its peremptory challenges, then the question whether defendant has made a prima facie showing is either considered moot [citation] or a finding of a prima facie showing is considered implicit in the request. [Citation.] But when … the trial court states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for purposes of completing the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied. [Citation.] When the trial court under these circumstances rules that no prima facie case has been made, ‘the reviewing court considers the entire record of voir dire. [Citation.]’ If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, ’ we reject the challenge.” (People v. Welch (1999) 20 Cal.4th 701, 745-746, internal quotation marks omitted; accord, People v. Boyette (2002) 29 Cal.4th 381, 422.)
In this case, we need not decide whether the court did or did not find a prima facie case because, after consideration of the entire record of voir dire, including but not limited to the prosecutor’s stated reasons, we are convinced that “the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.” (People v. Welch, supra, 20 Cal.4th at p. 746, internal quotation marks omitted.)
In this case, two of the three challenged jurors had close relatives who had been arrested. Ms. Moreno’s younger brother had been arrested for a theft-related offense: “being in a car when somebody stole it.” One of Ms. Ceballos’s sons had been diagnosed with schizophrenia in the aftermath of his arrest for a theft-related offense. She considered the crime “a symptom of his condition.”
In addition, two of the challenged jurors, Ms. Ceballos and Ms. Gomez, had sons who were currently incarcerated, one for a drug-related offense and the other for domestic violence. “ ‘[T]he use of peremptory challenges to exclude prospective jurors whose relatives and/or family members have had negative experiences with the criminal justice system is not unconstitutional.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 703.) Moreover, Ms. Moreno’s and Ms. Ceballos’ comments tended to minimize the conduct which resulted in their loved ones’ arrests. A prosecutor could legitimately fear that jurors with such tendencies might be unduly sympathetic to the defendants.
It is true that jurors No. 9 and 11also had relatives who had been arrested. Juror No. 9 had two nephews – not sons, or brothers – who had been charged with murder. One “got off” after two years, but the other “did some time.” However, Juror No. 9 stated that he and his brother (the boys’ father) were “not that close” and had not spoken about the case. Many years later, Juror No. 9 had spoken to the nephew who had gotten out early. That nephew felt “he wasn’t treated right.” But “the one that was incarcerated for years and years says it was okay. He learned to deal with it.”
As the Attorney General notes, Juror No. 9 had many characteristics that made him an otherwise attractive juror for the prosecution. He was a married businessman with two adult children, and he had previously served on a jury that had reached a verdict. In contrast, Ms. Ceballos had once served on a hung jury in a criminal case. (See People v. Gray, supra, 37 Cal.4th at p. 191.) Finally, the prosecutor questioned Juror No. 9 closely and at some length. Based on our review of the entire record, we reject defendants’ suggestion that Juror No. 9’s retention demonstrates a pretextual reason for challenging Ms. Gomez, Ms. Ceballos and Ms. Moreno.
Defendant Joey Howard erroneously assumes that Juror No. 9 was a woman, Ms. Moore. However, the record establishes that Juror No. 9 was a man and that Ms. Moore, prospective juror No. 8, was excused pursuant to a joint defense peremptory challenge.
We arrive at a similar conclusion with respect to Juror No. 11. Ten or more years earlier, his younger brother had been arrested for stealing some shoes. However, he had been wrongly accused and later the charges had been dismissed. Like Juror No. 9, he was also an otherwise attractive juror for the prosecution. He was married, had three small children, he was employed, and he had himself been the victim of a theft crime. Unlike Ms. Moreno, he had accumulated some “life experience.” Further, as noted earlier, he may have been Hispanic. In our view, Juror No. 11’s retention does not demonstrate that the challenged jurors were excused for pretextual reasons.
Finally, defendants argue that the prosecutor’s mistaken statement that Ms. Moreno was unemployed shows that his reliance on stated reasons other than ethnicity was insincere. We disagree. The record shows that all but two of the jurors were married. Of the two unmarried jurors, one was a firefighter/paramedic, and the other was an engineering manager who had graduated from high school over 20 years earlier. Thus, overall, the seated jurors had either more work, school or life experience than Ms. Moreno. On this record, we defer to the trial court’s finding that the prosecutor’s reasons for exercising his peremptory challenges were proper. No Batson/Wheeler error occurred.
2. Sufficiency of Evidence of Robbery
Defendant Joey Howard argues that the evidence adduced at trial is insufficient as a matter of law to support defendant’s conviction for robbery. Specifically, he claims there is no evidence that Joey aided and abetted Larry’s use of force or fear against Sordello. We disagree.
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.) A trier of fact may rely on inferences to support a conviction only if those inferences are “of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt” that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891.) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ and is ‘credible and of solid value.’ ” (Ibid., citation omitted.)
“The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation]…. An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211) The evidence shows that Ramsdell dropped his money as he ran, and that his friend Sordello was attempting to pick it up when Joey and Larry Howard, at the same time, exited the Mustang. Joey went to the front of Sordello and started to pick up the money while Larry went behind Sordello and hit him on the back of the head. It is undisputed that Joey did not touch Sordello. Thus, the question is whether Joey and Larry aided and abetted each other to rob Sordello. “ ‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ [Citations.] [¶] ‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ [Citations.] [¶] … [¶] “[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
In our view, the facts and the reasonable inferences to be drawn from them establish that Joey and Larry aided and abetted each other in the commission of a robbery. Both were in the car together and Joey, at least, as the driver and the one closest to the two teenagers, was in the best position to see the money drop from Ramsdell’s wallet as he ran. Sordello stated at trial that as he stooped to pick up the money, both Joey and Larry exited the car at the same time and together approached him, Joey going in front and stopping only a few feet in front of him while Larry went behind him, standing close enough to Sordello to hit him on the head. That neither Larry nor Joey spoke to each other suggests they had a plan, however hastily concocted. Further, “[t]heir concerted action reasonably implies a common purpose.” (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) A jury could reasonably infer from these facts that Larry and Joey shared the intent to impede Sordello’s attempt to recover the money and take it themselves, that each played a role in accomplishing that purpose, and that by his conduct, each encouraged, facilitated and aided the other in the goal of scaring Sordello away and taking the money. “Such conduct is a textbook example of aiding and abetting.” (Ibid.) The evidence was sufficient to support a robbery conviction.
3. Trial Court’s Response to Jury Inquiry
During deliberations, the jury posed the following hypothetical question: “A person commits petty theft in conjunction with another individual who commits second-degree robbery. The person committing petty theft is not aware that the other person committed second-degree robbery. Is now the person who [is] committing petty theft considered to be aiding and abetting second-degree robbery?”
The court responded: “There’s no easy way to answer that. And the problem – and the reason is, is that we don’t – we do not know and cannot know what factual findings, if any, that the jury has made. So all I can do is refer you back to the aiding and abetting instructions, which I’ll do. And I’ll put on the face sheet of these the three instructions that are – deal with aiding and abetting. They’re No. 27, 28, and 29. And I’ll read those again for you, but you can also reread them back in the jury room.” [¶] Persons who are involved in committing a crime are referred to as ‘principals’ in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include: 1. Those who directly and actively commit the act constituting the crime; or 2. Those who aid and abet the commission of the crime. [¶] A person aids and abets the commission of the crime when he or she: 1. With knowledge of the unlawful purpose of the perpetrator; and 2. With the intent or purpose of the committing or encouraging or facilitating the commission of the crime; and 3. By act or advice aids, promotes, encourages, or instigates the commission of the crime. [¶] A person who aids and abets the commission of the crime need not be present at the scene of the crime. [¶] . . . [¶] Mere presence at the scene of the crime which does not itself assist the commission of the crime does not constitute aiding and abetting. [¶] And mere knowledge that a crime is being committed and failure to prevent it does not amount to aiding and abetting. [¶] And the last one, No. 29: [¶] For the purpose of determining whether a person is guilty as an aider and abettor to robbery, the commission of the … crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety. [¶] I don’t know if that answers your question or not, but that’s the best we can do without knowing what your factual findings, if any, that you have made. And we can’t know that.”
A few minutes later, the jury sent word that it had reached verdicts. After the verdict, trial counsel for Joey Howard stated that he had requested the court to limit its re-instruction to the one line of CALJIC 3.01 which states “A person aids and abets the commission … of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator.”
Section 1138 provides, in relevant part, that “[a]fter the jury have retired for deliberation, … if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given….” The jury’s request for clarification triggered a duty on the trial court’s part “to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Here, the standard instructions were “full and complete.” The court’s re-instruction properly focused the jury on the law of aiding and abetting, to which the jury’s question related. The court did not err in refusing to select and focus on only one aspect of that law.
4. Robbery Instructions
Defendant Larry Howard makes two arguments of instructional error. First, he argues that the trial court had a duty to instruct sua sponte on the lesser included offense attempted robbery. Second, he argues that the trial court confused and misled the jury by instructing it on afterthought theft and aiding and abetting. “We conduct independent review of issues pertaining to instructions.” (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411, citing People v. Waidla (2000) 22 Cal.4th 690, 733, 737 [lesser included offense instructions].)
With respect to the attempted robbery instruction, defendant argues that such an instruction should have been given because “the prosecution presented no evidence that [defendant] completed a ‘taking’ of personal property, ” inasmuch as Sordello did not see what happened to the money after he fled and the police did not find any money on the defendants or in their car. Therefore, he argues, the jury could have inferred that Larry never intended to take the money (after hitting Sordello on the head), or changed his mind about taking the money, or fled without the money because he was afraid of getting caught. He also argues that the error was prejudicial because “the jury here had before it an ‘all or nothing’ decision; either convict [defendant] of robbery or set him free.” We disagree.
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence, and instruction on lesser included offenses is required whenever evidence that a defendant is only guilty of the lesser offense is “ ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) There is no duty to instruct on lesser offenses when there is no evidence that the offense was less than charged. (People v. Lewis (1990) 50 Cal.3d 262, 276.)
Here, there is no substantial evidence to support a rational inference that no taking occurred. Sordello’s testimony was unequivocal that Larry and Joey exited the car at the same time, that Joey went to the front of him and was picking up the money while Larry went behind him and hit him on the head. This evidence shows that Larry and Joey acted in concert and took the money by force. Whatever may have happened to the money later, the robbery was completed, not merely attempted. On these facts, defendant was not entitled to an attempted robbery instruction.
Moreover, defendant is incorrect that the jury had an all or nothing choice to convict him of robbery or set him free. The court gave instructions on the lesser crimes of grand theft from a person and petty theft. The jury necessarily rejected defendant’s claims of total innocence and lesser culpability when it convicted him of robbery and rejected the lesser included offenses. There was no error and no prejudice.
Defendant Larry Howard also argues that CALJIC No. 9.40.2 should not have been given because it did not fit the situation where the theft occurs prior to the application of force and fails to explain that robbery occurs only when act and intent are united. He argues that the jury instruction “tended to mislead the jury into believing that since Joey had an intent to steal, all of the participants committed robbery.” He also argues that the jury instructions on aiding and abetting served to further confuse the jury because the jury was not told that the aiding and abetting instructions applied only to Joey, and not to Larry. We disagree.
CALJIC 9.40.2 states: “To constitute the crime of robbery, the perpetrator must have formed the specific intent to permanently deprive an owner of [his] [her] property before or at the time that the act of taking the property occurred. If this intent was not formed until after the property was taken from the person or immediate presence of the victim, the crime of robbery has not been committed.”
When reviewing a claim that the instructions confused or misled the jury, we inquire “whether there is a reasonable likelihood that the jury misconstrued or misapplied the words in violation of” state law. (People v. Clair (1992) 2 Cal.4th 629, 663.) Here, defendant’s argument is premised on the faulty factual assumption that Larry and Joey did not aid and abet each other, and that what occurred here was an independent act of assault by Larry completely separate from an independent act of theft by Joey. However, as we have noted elsewhere, on the basis of Sordello’s testimony, the jury could reasonably infer that the defendants acted together to part Sordello from his friend’s money. Under these circumstances, aiding and abetting instructions were proper as to both defendants and there is no reasonable likelihood that the aiding and abetting instructions were confusing to the jury.
As for the after-acquired theft instruction, in our view, it is not reasonably likely that the jury would have construed it in a way that prejudiced defendant. At best, it would have benefited Larry by providing him an avenue of acquittal if the jury believed that Joey formed no intent to permanently deprive Sordello of the money until after Larry knocked him on the head. At worst, the instruction had no application to the facts before the jury. The court told the jury that “[t]he purpose of the Court’s instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend on what you find to be the facts. Disregard any instruction [sic] which apply to facts determined by you not to exist. Do not conclude that because an instruction has been given that I’m expressing an opinion as to the facts.” We presume the jury followed the court’s instruction in this regard. (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) We conclude no error occurred.
5. Trial Court Rulings During Closing Argument
Defendants complain that the trial court made biased rulings during closing arguments that denied them due process of law. The contentions lack merit, and we reject them.
Specifically, defendants argue that the trial court erred by overruling defense objections of “facts not in evidence” and “calls for speculation” to the prosecutor’s comments suggesting that when the defendants noticed that they were being followed by a police car in the rear view mirror, they could have tossed a roll of bills into the backseat for the girls to hide.
“It is settled that 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.” (People v. Williams (1997) 16 Cal.4th 153, 221, internal quotation marks omitted.) Evidence was adduced at trial that the girls, one of whom was wrapped in a blanket, were only superficially pat-searched for weapons and that no female officer was available that night to conduct a more thorough search. In our view, it was “a fair inference drawn from the evidence” (People v. Avena (1996) 13 Cal.4th 394, 421) that the girls hid the money on their persons, and the trial court did not abuse its discretion or act in a biased manner by overruling the defense objection to the prosecutor’s argument.
Next, defendants argue that the trial court erred in sustaining the prosecutor’s objection of “calls for speculation” and “assumes facts not in evidence” to defense counsel’s argument that “[t]he girls were giggly because this [the detention] was ludicrous.” In our view, the reason for the girls’ giggles at this juncture was not inferable from the evidence adduced at trial, and the trial court did not abuse its discretion or act in a biased manner by sustaining the objection.
Finally, defendants complain that the trial court erred in sustaining the prosecutor’s objection of “improper argument” when Larry Howard’s attorney attempted to revisit the court’s earlier rulings by using them to illustrate the difference between “evidence” and “speculation.” In our view, the trial court did not abuse its discretion by steering counsel away from using its rulings as fodder for argument.
In any event, immediately after telling defense counsel “don’t go into it, ” counsel was permitted to discuss the difference between evidence and speculation and, more importantly, to argue that it would be speculative to infer that the girls had hidden the money. No prosecutorial misconduct, judicial misconduct, or fundamental unfairness appears.
“[Defense counsel]: The speculation is not allowed in this case. You’re not to find things from what could have happened, what should have happened, what might have happened. The district attorney, the prosecutor, is required, under the law, to present you with evidence. Not inferences. Evidence. You, as jurors, will find the reasonable inferences that you can make and what’s a reasonable inference and what’s not reasonable inference, and we’ll hit on that. [¶] So we’ve established the ground rules. It should not be speculation. It’s not ‘could have.’ It’s not ‘might have.’ The girls had the money is the very form of speculation the law prohibits you to make in this case, and I ask you that you not go down that road. And I’ll get to the girls in a few moments….”
6. Attorney Fees
After referring defendant Larry Howard to the Department of Revenue for a determination of his ability to pay the fines and fees, the court imposed “attorney’s fees not to exceed $1,000.” On appeal, defendant Larry Howard argues that the trial court ordered him to pay $1,000 in attorney fees without first determining that he had the ability to pay that amount, and without any basis in the record to support a determination that he had the ability to pay that amount. The Attorney General argues that defendant has waived the contention, but that in any event the record supports the court’s order. We find no waiver of defendant’s claim, because in essence it is a substantial evidence claim that is not forfeited. (People v. Butler (2003) 31 Cal.4th 1119, 1126.) But we agree that the record before the court supports the determination that defendant had the ability to pay up to $1,000 in attorney fees.
Under section 987.8, subdivision (b), “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”of legal assistance provided through “the public defender or private counsel appointed by the court. … The court 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.” (Italics added.)
Subdivision (c) provides that where a defendant was afforded such legal assistance and, “at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision.” (§ 987.8, subd. (c).)
Upon determining after a hearing that the defendant does have “the present ability to pay all or a part of the cost” of legal assistance, “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county….” (§ 987.8, subd. (e).)
Section 987.8, subdivision (g)(2) sets forth the definition of “ability to pay” and lists factors the court must consider in making that determination: “ ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. … [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (Italics added.)
A determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fee order. (§ 987.8, subd. (e).) While such a determination may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) When the issue on appeal is sufficiency of the evidence, “we must draw all reasonable inferences in favor of the judgment.” (People v. Mercer (1999) 70 Cal.App.4th 463, 467.)
Here, drawing all inferences in favor of the judgment, we cannot agree with defendant that the court’s attorney fee order lacks substantial evidentiary support. The probation report reflects that prior to his arrest, defendant was earning $1,500 to $2,000 a week selling drugs. Further, in a letter to the probation officer, defendant’s maternal step-grandmother stated that her son had offered defendant a construction job earning $20 an hour upon his release from custody.
As noted, section 987.8, subdivision (g)(2)(B) stipulates that “[i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position.” This means that “[i]n determining a defendant’s ‘present ability’ to pay, the court may consider his future financial position in the ensuing six months following the hearing [citation]. This of course contemplates his earnings from any source….” (People v. Spurlock (1980) 112 Cal.App.3d 323, 328, fn. omitted.) In our view, substantial evidence supports the trial court’s implied finding that, between defendant’s prior earnings and his future earnings, defendant had the ability to pay up to $1,000 in attorney fees. No error appears.
7. Probation Conditions
Defendant Larry Howard objects to the probation condition, as stated in the preprinted minute order, that he have “no association with gang members.” At sentencing, however, the trial court specifically ordered defendant “not to associate with individuals identified as members of any criminal street gang, as identified by the probation department.” The court asked defendant if he accepted probation on those terms and conditions, and defendant stated that he did. Defendant argues that the condition on the pre-printed minute order is constitutionally overbroad. He asks us to modify that condition to refer to persons known to him to be associated with a gang. He makes no reference to the court’s oral order in his opening brief.
The Attorney General argues that defendant has forfeited the claim by failing to object to the probation condition below. On the merits, he does not address the condition stated on the preprinted minute order. Instead, he argues that the court’s oral order was reasonable.
It is now settled that a probationer may challenge the constitutionality of a gang condition on appeal even though he or she did not object to it on that ground below. (In re Sheena K. (2007) 40 Cal.4th 875, 879 (Sheena K.).) Turning to the merits, we observe that a probation condition “ ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ’ if it is to withstand a challenge on the ground of vagueness.” (Id. at p. 890.) “[T]he underlying concern [of the vagueness doctrine] is the core due process requirement of adequate notice: No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. [Citations.] The operative corollary is that ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ [Citation.] [¶] … Thus, a law that is ‘void for vagueness’ not only fails to provide adequate notice to those who must observe its strictures, but also ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ ” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116.)
Sheena K. involved a probation condition very similar to the condition at issue here. In that case, the trial court forbade the defendant from associating with “ ‘anyone disapproved of by probation.’ ” (Sheena K., supra, 14 Cal.4th at p. 889.) Our Supreme Court agreed with the Court of Appeal “that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague. Both as orally pronounced by the juvenile court, and as set forth in the minute order, the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by herprobation officer. … [T]he juvenile court in the present case did not clarify that the probation condition required such notice to the probationer.” (Id. at pp. 891-892, fn. omitted.)
The Sheena K. court approved of the appellate court’s insertion of “the qualification that defendant have knowledge of who was disapproved of by her probation officer, and thus securing the constitutional validity of the probation condition. In the interest of forestalling future claims identical to defendant’s based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the [probationer].” (Sheena K., supra, 14 Cal.4th at p. 892.) Accordingly, we modify the probation condition in both the minute order and the oral order to read “the defendant is not to associate with individuals known to him to be identified by the probation officer as members of any criminal street gang.”
CONCLUSION
Substantial evidence supports Joey Howard’s conviction for robbery. The prosecutor’s use of peremptory challenges did not violate the federal or state constitutions. The trial court adequately responded to the jury’s hypothetical question. Neither prosecutorial nor judicial misconduct occurred during closing arguments. Attempted robbery instructions were not required in this case. The jury was not confused or misled by the aiding and abetting or afterthought theft instructions. Attorney fees were properly imposed. The probation condition relating to association with gang members was constitutionally overbroad and must be modified.
DISPOSITION
The judgment is modified to amend the probation condition relating to association with gang members as follows: “The defendant is not to associate with individuals known to him to be identified by a probation officer as members of a criminal street gang.” As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
Later counsel argued: “The young ladies are in the car. They’re searched. There is no money on anyone. No one has money there. Not a dollar, not 32 cents. Nothing. [¶] [W]here that money went is exactly the form of speculation you should not allow [the prosecutor] to ask you to make. That is not evidence. That is not a fact that’s been presented to you. No one here has said these young ladies had the money. … [¶] … [¶] Ask the prosecutor to answer those questions about why he is not showing you that they [the girls] could have had the money, but they’re not before this Court.”
Finally, defense counsel argued again: “Finally – and I’m trying to get through this – is that the girls are really a nonissue. They don’t have the money. If they had the money, there’d be evidence that they had the money. Don’t speculate. Don’t ask the – don’t allow the prosecutor to get up and say it’s our duty to show that they had they money.”