Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211028
Duffy, J.
A jury convicted defendant Duncan David Reynard of one count of committing lewd or lascivious acts on a victim under age 14. (Pen. Code, § 288, subd. (a).) The victim, six-year-old K. T., was the daughter of defendant’s neighbor. The trial court sentenced defendant to three years’ probation subject to six months in county jail and ordered him to register as a sex offender and pay a variety of fees.
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims that the prosecutor committed misconduct during closing argument and that he received ineffective assistance of counsel on each occasion that his counsel did not object to a prosecutorial remark of which he complains on appeal. He also claims that the trial court did not follow the proper procedure to assess certain of the fees against him and they must be set aside.
With regard to defendant’s prosecutorial misconduct claims, we find some misconduct, but none that requires reversing the judgment. As for defendant’s monetary claims, we conclude that defendant is liable to pay the fees but also conclude that certain fees were improperly imposed as a condition of probation. We will modify the judgment and, as modified, affirm it.
FACTS
Defendant’s crime consisted of lewd touchings of K. T. through her clothes, having her sit on his lap, kissing her, and successfully enticing her to kiss him. The incidents occurred from the summer of 2004 until the end of that year. K. T. testified about defendant’s misconduct in court and K. T.’s mother testified that K. T. reported the abuse to her and she confronted defendant and his family. In a videotaped interview with a sheriff’s detective that was played to the jury, K. T. said that defendant would rub her “in certain spots” and “was kissing me a lot.” K. T. would resist and told the detective that “he rubs me in certain spots, like my private part, a certain place I don’t like him rubbing.” K. T. thought defendant’s behavior was “weird” because “I’m only six and he’s like thirty years old.”
In his case in chief, defendant relied on evidence that children have been known to have false memories of events in their lives, that K. T.’s mother delayed reporting the sexual abuse to law enforcement authorities, and that K. T. and her siblings continued to like defendant after the purported abuse occurred. There was also admittedly inconclusive alibi evidence that evidently showed that defendant worked regularly at two chain stores during the months in which the sexual abuse occurred, limiting his opportunities to commit such abuse. Cross-examination of a defense witness, Santa Clara County Sheriff’s Deputy Aldo Groba, produced, however, further inculpatory evidence. Deputy Groba agreed that K. T. had told him that defendant had touched her in what the prosecutor called K. T.’s “private part.” When Deputy Groba asked K. T. to illustrate where that was on a sketched stick figure, she drew a circle around the figure’s crotch area.
The evidence, consisting of pay stubs and W-2 forms, is not described with particularity in the record. We will assume for purposes of discussion that it would show that defendant worked at one store from September to early November of 2004 and another from later in November of 2004 through December of that year.
Additional facts relevant to a particular claim or subclaim will be presented in the discussion of that item.
DISCUSSION
Defendant’s first 10 claims pertain to perceived prosecutorial misconduct during closing argument. The last pertains to the assessment of statutory fees.
I. General Principles Pertaining to Claims of Prosecutorial Misconduct
The law regarding review of claims of prosecutorial misconduct is well settled. “ ‘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.” [Citations.] ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
When the defendant’s claim on appeal focuses on 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 those remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 284.) It is unclear whether the reasonable likelihood standard is a prejudice standard or a substantive component of the law of prosecutorial misconduct. (Compare, e.g., People v. Harrison (2005) 35 Cal.4th 208, 244 [reasonable likelihood standard is part of substance of misconduct; prejudice standard is to affirm the judgment “ ‘unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct’ ”] and People v. Turner (2004) 34 Cal.4th 406, 429, with, e.g., People v. Cook (2006) 39 Cal.4th 566, 608 [“defendant has not established prejudice justifying reversal under the state law test requiring a reasonable likelihood of a more favorable verdict in the absence of the challenged conduct”] and People v. Brown (2003) 31 Cal.4th 518, 553.) In addressing defendant’s claims, we will assume that reasonable likelihood is part of the substantive law of prosecutorial misconduct and reasonable probability is the standard of review for prejudice.
It is important to note prefatorily that the trial court admonished the jury immediately before the prosecutor’s first closing argument as follows: “We’re going to go forward now with argument. [¶] . . . [¶] . . . [O]ral statements by counsel . . . [are] not evidence, . . . [¶] The only evidence you’re concerned with is the evidence given under oath and the documents the court has admitted.” The court was correct. “ ‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Thornton (2007) 41 Cal.4th 391, 441.) The court’s reminder was helpful in ensuring that this was the case in defendant’s trial.
II. Forfeiture
We begin by noting that because defendant did not object to any prosecutorial remark that he complains of on review and does not show that an admonition by the trial court would not have cured the harm, he has forfeited each of his prosecutorial misconduct claims. “Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor’s improper remarks. [Citation.] In the absence of an objection, ‘the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citation.] Here, defendant did not object to any of the instances of purported prosecutorial misconduct. Because an admonition would have cured any possible harm from the claimed instances of misconduct, defendant has not preserved his claims of misconduct.” (People v. Tafoya, supra, 42 Cal.4th at p. 176.)
In most cases, however, “an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; cf. id., p. 888, fn. 7, 3d par. [appellate courts lack discretion to review otherwise forfeited claims regarding the admission or exclusion of evidence].) Despite the fact that defendant has forfeited his prosecutorial misconduct claims, we exercise our discretion to review them on their merits. Doing so serves judicial economy insofar as defendant claims that he received ineffective assistance of counsel on each occasion that his counsel did not object to a prosecutorial remark of which he complains on appeal.
III. Improper Appeal to Jurors’ Sympathy for the Victim
Defendant contends that the prosecutor committed misconduct by repeatedly invoking the victim’s vulnerability as a very young girl and calling her case sad. Under recent California Supreme Court precedent, he is correct.
K. T. is young. At the time of the crimes she was either in first grade or between kindergarten and first grade. The prosecutor argued that the case involved “a poor little six-and-a-half[-]year[-]old girl,” and urged the jurors to “think of how hard that must have been for her” to be “thrust into the adult world of sex” at that age. The prosecutor urged the jurors to “picture her little face as it’s crying and say to yourself, I know that that is a little girl crying out for help, because something bad has happened to her.” The prosecutor’s closing argument was peppered with additional references to K. T.’s vulnerability and/or the unfortunate situation in which defendant had placed her. The prosecutor repeatedly called K. T. “poor,” “little,” or both adjectives.
Throughout his opening and reply briefs, defendant quotes long passages from the prosecutor’s arguments that he considers objectionable on appeal. We quote or describe representative passages containing remarks we consider most relevant to his claims.
In People v. Mendoza (2007) 42 Cal.4th 686, our high court found prosecutorial misconduct when the prosecutor argued, “[d]o you remember the thing he said to little Sandra just before he executed her with a gun at her head? Can you imagine the terror that this child is going through, and that all the people are going through? Certainly the children. Can you imagine that terror?” (Id. at p. 704.) The court explained that “[i]n the guilt phase of a trial, it is misconduct to appeal to the jury to view the crime through the eyes of the victim.” (Ibid.) It is misconduct because “ ‘to do so appeals to the jury’s sympathy for the victim’ ” (People v. Lopez (2008) 42 Cal.4th 960, 969), and an “ ‘appeal for sympathy for the victim is out of place during an objective determination of guilt.’ ” (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Under the foregoing authority, it is evident that the prosecutor’s comments to view the crime through K. T.’s eyes and with sympathy for K. T. constituted misconduct.
We next turn to prejudice under state law. (We will take up defendant’s due process claim post, p. 14.) In Mendoza, the court found that the above-quoted remarks were not prejudicial in part because “this was not a close case; evidence of defendant’s guilt was overwhelming.” (People v. Mendoza, supra, 42 Cal.4th at p. 704.) The same is true here—i.e., we discern no reasonable probability of a different outcome had the prosecutor not made the remarks. (People v. Harrison, supra, 35 Cal.4th 208, 244.) (We agree with defendant that the other prejudice factor articulated ibid.—that the prosecutor’s remarks were brief and isolated—does not apply here.) There was strong prosecution evidence from multiple witnesses that defendant committed the crime against K. T. The defense case was amorphous and did little to contradict the compelling testimony of K. T. and other prosecution witnesses about the sexual abuse. We find no prejudice.
IV. Misstating the Law
Defendant contends that the prosecutor misstated the law during closing argument.
“Although counsel have ‘broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]’ [Citation.]” (People v. Mendoza, supra, 42 Cal.4th at p. 702.)
A. Reasonable Doubt Based on Evidence
The prosecutor argued that to find defendant not guilty beyond a reasonable doubt the jurors must have “a doubt based on a reason. It’s not based on speculation . . . . It’s based on the evidence that comes in. [¶] Their defense is that [K. T. is] a liar . . . . But there’s not a single witness that supports that[;] not even their own expert supports it. There’s absolutely nothing.” Defendant likens this remarks to the prosecutor’s remarks in People v. Hill (1998) 17 Cal.4th 800, in which the high court found misconduct in a prosecutor’s remarks that “ ‘you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’ ” (Id. at p. 831, italics deleted.) The Hill court called the foregoing remarks “somewhat ambiguous” (ibid.) and found it to be an “arguably . . . close” (id. at p. 832) question whether they constituted misconduct, but decided that the prosecutor was in the wrong “insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.] Further, to the extent [that the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence.” (Id. at p. 831.)
The comments here do not carry the same risk as those questioned in Hill. As noted, we review the remarks to determine whether there is a reasonable likelihood that the jury construed or applied them in an objectionable fashion. (People v. Ayala, supra, 23 Cal.4th at p. 284.) We discern no such likelihood. The prosecutor was tautologically right that in order to have a reasonable doubt that defendant was not guilty the jurors’ doubts must be based on reason, meaning the state of the evidence and not speculation. And he was entitled to comment, as he did, on the state of the evidence, including weaknesses in defendant’s position. In general during a trial to determine a defendant’s guilt, “the prosecutor may comment ‘ “on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.” ’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 90.) There is no reasonable likelihood that the jurors would have understood the reference to “the evidence that comes in” as alleviating the prosecution’s burden to prove each element of the crime beyond a reasonable doubt or requiring defendant to put forth his own evidence to show a lack of a reasonable doubt. Accordingly, there was no prosecutorial misconduct.
B. Referring to Certain Trial Proceedings as Garbage
Defendant contends that the prosecutor urged the jurors to reject as mere detritus an instruction the trial court might later give on credibility.
The prosecutor argued, “the judge is going to read you some instruction on credibility and how you’re supposed to determine it. [¶] Two lawyers are going to sit here and bicker about different transcripts and who said what when. All of that is garbage. All of you already know what the truth is.”
We discern no reasonable likelihood that the jurors understood the prosecutor’s remarks as defendant interprets them. He was not criticizing the anticipated instruction, but asserting that remarks made by zealous counsel (including the prosecution) in an adversary proceeding should be treated skeptically. To be sure, the remark was “clearly dismissive of the defense’s theory” (People v. Cook, supra, 39 Cal.4th at p. 608), but it “did not improperly impugn the integrity of defense counsel.” (Ibid.) In Cook, the prosecutor had dismissed a defense argument as mere “smoke” (ibid.) and alerted the jurors that defense counsel might be trying to “hoodwink” them (id. at p. 607), but the high court found no prosecutorial misconduct. (Id. at p. 608.) We find no prosecutorial misconduct here. Nor, contrary to defendant’s urging, do we find that any other remarks by the prosecutor, such as urging jurors to use their “common sense,” inviting them to consider that “[c]redibility is kind of like a gut check,” and arguing that there were “no witnesses that [came] in to talk about” a particular point, shifted the burden of proof to him. The prosecutor was properly commenting on the state of the evidence in every instance to which defendant refers. (People v. Cornwell, supra, 37 Cal.4th at p. 90.)
V. Misstating the Facts
Defendant contends that the prosecutor committed misconduct by bringing up irrelevant, inaccurate, and unsupported argument about (1) the reasons that adult rape victims might delay reporting the crimes against them, (2) the psychological traits of teenagers, and (3) how defendant’s developmental disabilities would make him more likely to have an unnatural interest in young children.
A. Observed Behavior of Adult Rape Victims
As noted, the defense introduced evidence that K. T.’s mother delayed calling the police to report defendant’s sexual abuse. The prosecutor explained the delay by K. T.’s mother in reporting the crime by likening her to adult rape victims who are erroneously considered “untrustworthy” when they hesitate to report the crimes immediately. He called such individuals victims of an unfair stereotype, as shown by “a lot of research.”
The People invoke a California Supreme Court decision that a criminal defendant “ ‘may not complain on appeal if the [prosecutor’s] reasoning is faulty or the conclusions are illogical because these are matters for the jury to determine.’ ” (People v. Thomas (1992) 2 Cal.4th 489, 526.) The People are correct about that aspect of the law (see also People v. Wilson (2005) 36 Cal.4th 309, 337 [“ ‘Whether the inferences the prosecutor draws are reasonable is for the jury to decide’ ”]). But defendant’s point is different. “ ‘ “[C]ounsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” [Citation.] . . .’ [Citation.] Nevertheless, ‘[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.’ ” (People v. Ward (2005) 36 Cal.4th 186, 215.) When the prosecutor stated that “a lot of research” explained an aspect of rape trauma syndrome, he was referring to evidence outside the record and in effect substituting himself as a witness on the topic.
Thus, the prosecutor’s remarks contained an element of misconduct. Nevertheless, for the reasons stated ante, page 6, we find no prejudice. (We will take up defendant’s due process claim post, p. 14.)
B. Comparing Teenagers’ Wiles With Younger Children’s Behavior
Next, defendant finds misconduct in the prosecutor’s argument that teenagers are more sophisticated, deceitful, and manipulative than the young victim here. That was a tolerable, if unfocused and rambling, argument that was drawn from common experience, and it did not constitute misconduct.
C. Remarks About Defendant’s Mental Impairments
Finally, defendant finds misconduct in the prosecutor’s argument that someone with defendant’s “weird,” “odd,” and “abnormal” personality traits is “not going to have normal sexual contact”; rather, defendant is someone so “mentally slow” as to have “a behavior like a 10-year-old” and so “would relate to [K. T.] almost on a peer level” rather than “to 40-year-olds his own age.” Indeed, the prosecutor remarked that it would be understandable if jurors felt sympathy for defendant given his mental defects, but that the jurors could not allow sympathy to enter into their evaluation of defendant’s criminal liability.
Defendant had elicited detailed testimony while cross-examining K. T.’s mother that she viewed defendant as passive and childlike. She balked at describing him as retarded, however. Although K. T.’s mother did not consider defendant retarded, K. T. told the interviewing detective that she thought defendant conceived of her as his girlfriend, which suggests that defendant had a cognitive deficit. And K. T.’s mother told another sheriff’s detective that defendant was comparable to a boy rather than a man. Moreover, there was evidence that defendant liked to join K. T. in such children’s games as coloring at the kitchen table in K. T.’s house (though defendant told K. T. he had never learned how to draw), hanging around and talking aimlessly, within earshot of K. T.’s mother, to K. T. while she played in a tree, and playing with her in ivy outside defendant’s house—behavior that also suggests a developmental disability.
We discern no prosecutorial misconduct. There was evidence that defendant, who was 39 years old at the time of the crimes, was childlike, passive, and enjoyed the company of a six-year-old girl for such platonic purposes as engaging in playful activities with her. The prosecutor’s point was that such an individual, presumably impelled by the same sexual urges as other adults but cognitively incapable of recognizing that K. T. was not a proper choice for a girlfriend, might be motivated to go beyond the merely platonic with her. That was fair argument and did not constitute misconduct.
VI. Disparaging the Defense
Defendant claims that the prosecutor committed misconduct by analogizing the defense to a rubber shark associated with the movie Jaws, i.e., that it was “not scary” but instead threadbare “once you really look at it,” and by referring to the defense’s “lawyer tricks,” “parlor tricks,” and “legal mumble-jumble” (sic: mumbo-jumbo).
Although it is misconduct to “ ‘attack . . . the defendant’s attorney’ ” (People v. Hill, supra, 17 Cal.4th at p. 832) personally, including challenging the attorney’s personal honesty (see People v. Bemore (2000) 22 Cal.4th 809, 846), it is not misconduct to disparage the merits of the defense or artful tactics used to make the defense seem stronger than it is. In each instance defendant raises, “[i]t was clear the prosecutor’s comment was aimed solely at the persuasive force of defense counsel’s closing argument, and not at counsel personally. We have found no impropriety in similar prosecutorial remarks.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1155.) Among the remarks the Supreme Court has found proper are that a defense is ridiculous and outrageous, that defense counsel “was talking out of both sides of his mouth and that this was ‘ “great lawyering” ’ ” (ibid.), and that members of the defense bar try to sow confusion because doing so benefits the defense in criminal cases. (Ibid.) It has also been found acceptable to argue that defense counsel “ ‘tried to smoke one past us’ ” (People v. Huggins (2006) 38 Cal.4th 175, 207) and to call the defense a smokescreen (People v. Stitely (2005) 35 Cal.4th 514, 560). In defendant’s case, “we see no improper attack on counsel’s integrity, but only on the merits of his trial tactics and arguments.” (Zambrano, at p. 1155.) The prosecutor did not commit misconduct.
VII. Vouching for Witnesses
Defendant contends that the prosecutor committed misconduct when he argued that the evidence before the jurors showed that K. T.’s testimony was “true” and made clear that she “wasn’t coached,” “answered the best she could,” and was not an “actress” who was “pretending,” but rather displayed “a genuine outpour of emotion here on the stand.” The prosecutor further argued that each juror should decide that “I believe that little girl,” “I believe mom,” and “I have to believe the daughter,” i.e., K. T.
“The general rule is that improper vouching for the strength of the prosecution’s case ‘ “involves an attempt to bolster a witness by reference to facts outside the record.” ’ [Citation.] Thus, it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] Specifically, a prosecutor’s reference to his or her own experience, comparing a defendant’s case negatively to others the prosecutor knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record. [Citations.] [¶] It is not, however, misconduct to ask the jury to believe the prosecution’s version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party’s interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument . . . .” (People v. Huggins, supra, 38 Cal.4th at pp. 206-207.)
Arguments about witnesses’ credibility are routinely made and are integral to many closing arguments. Such arguments are proper if made based on facts before the jury or inferences that counsel has drawn from those facts. Thus, “it is misconduct ‘to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.’ [Citation.] The vice of such remarks is that they ‘may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government’s view of the evidence.’ [Citation.] However, these limits do not preclude all comment regarding a witness’s credibility. ‘ “ ‘[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.’ ” ’ [Citation.] ‘[S]o 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,” her comments cannot be characterized as improper vouching.’ ” (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.) To that extent, the prosecutor’s remarks that K. T. was entitled to be believed, based on evidence the jury received, including K. T.’s demeanor in court and during a taped interview, were proper and did not constitute misconduct.
Defendant further argues that the prosecutor stated that he personally believed K. T. and her mother, overstepping the bounds of proper argument. Not so. Defendant cites the prosecutor’s “I believe” statements in isolation, suggesting that the prosecutor was offering his own belief. In context, here is what the prosecutor said:
“You can start from [K. T.] and say, wow, I’ve got a little girl that has no reason to lie. Is having unnatural outpourings of emotion where she is literally scared for her own body and all she wants is help, I believe that little girl.”
“You’re not just believing a little girl, you’re believing a little girl and her mother. You’re believing a little girl, a mother and her father. You’re believing a little girl, a mother, a father and a video tape.”
“[I]f the disclosure is all a big lie, why is she crying in front of mom’s eyes? [¶] I’ve got—I believe mom. Now, I have to believe the daughter. Okay. That’s how it works. Draw from within to resolve the conflict in any one of the pieces but also draw from [with]out to resolve those conflicts.”
We discern no “ ‘reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Ayala, supra, 23 Cal.4th at p. 284.) It is plain that the prosecutor was arguing to the jurors that they should believe K. T. and her mother based on their own assessment of the trial evidence. When a prosecutor’s assurances regarding the honesty or reliability of witnesses are based on the evidence before the jurors, the prosecutor does not commit misconduct. (People v. Bonilla, supra, 41 Cal.4th at p. 337.) The prosecutor did not stray from the latitude afforded him, and did not commit misconduct.
VIII. Due Process Considerations
We turn next to defendant’s federal due process claim.
A prosecutor’s conduct violates the due process clause of the Fourteenth Amendment to the United States Constitution when the prosecutor’s misconduct renders the trial “fundamentally unfair.” (People v. Tafoya, supra, 42 Cal.4th at p. 176.) We agree (see Strickland v. Washington (1984) 466 U.S. 668, 696) with the definition of fundamental unfairness in the context of a prosecutorial misconduct due process claim set forth in Davis v. Zant (11th Cir. 1994) 36 F.3d 1538: “Improper argument by a prosecutor reaches this threshold of fundamental unfairness if it is ‘so egregious as to create a reasonable probability that the outcome was changed.’ [Citation.] A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 1545.) Under the foregoing standard, there was no due process violation. Given the strength of the prosecution case, nothing the prosecutor did improperly undermines our confidence in the verdict.
IX. Ineffective Assistance of Counsel
Defendant claims that counsel’s failure to object to the prosecutorial remarks about which he complains on appeal constituted ineffective assistance of counsel.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the federal Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
We cannot say that a reasonable probability exists of an adverse effect on the outcome as a result of counsel’s performance, i.e., “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) As we have already noted in discussing defendant’s due process claim, our confidence in the outcome is not undermined by the prosecutorial misconduct defendant has identified.
X. Conclusion Regarding Prosecutorial Misconduct
In sum, we conclude that although instances of prosecutorial misconduct occurred, none of them, considered individually or for their cumulative effect on the trial, amounts to prejudicial and hence reversible error under state law or violated defendant’s federal due process rights. Nor did defendant receive ineffective assistance of counsel despite counsel’s failure to object to the prosecutorial remarks about which defendant complains on appeal.
XI. Assessment of Statutory Fees
Defendant claims that various statutory fees were improperly imposed and must be set aside. He maintains that there was insufficient evidence of his ability to pay the fees the court imposed or that those assessments reflected the actual cost of services. We do not agree.
Defendant refers to the trial court’s imposing, in its oral pronouncement at the sentencing hearing, a $207.55 criminal justice administration fee (Gov. Code, § 29550, subds. (c), (d)(2)), a probation investigation fee of $450 or less (§ 1203.1b, subd. (a)), and a probation supervision fee of $64 per month or less (ibid.). The court also noted that the Department of Revenue would evaluate defendant’s ability to pay the fees and if he disagreed with the administrative determination the court would conduct a hearing on the matter. The court stated that defendant was eligible for work furlough while in county jail. The court made payment of the fees a condition of probation, stating, “The defendant will be placed on formal probation . . . on the following terms and conditions,” payment of the fees being one of them.
The People respond procedurally that defendant has forfeited his claim because he failed to complain of the trial court’s imposing the foregoing fees at the time the court did so, and that the claim is not ripe for review because the court never actually ordered defendant to pay the fees, instead estimating the costs and referring defendant to the Department of Revenue for determination of his ability to pay them. Substantively, the People argue that the record contains substantial evidence of defendant’s ability to pay the fees.
With regard to forfeiture, we exercise our discretion to review defendant’s claims on the merits. (In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) As noted, the trial court imposed the fees (subject to evaluation by the Department of Revenue) as a condition of granting probation to defendant. The court could not lawfully impose probation-related costs as a condition of probation. (People v. Hart (1998) 65 Cal.App.4th 902, 906-907.) As far as the probation-related fees are concerned, then, defendant’s claim does not fall within the forfeiture rule the People invoke. Our Supreme Court has “distinguished between unauthorized sentences—those that ‘could not lawfully be imposed under any circumstances in the particular case’ [citation]—and discretionary sentencing choices—those ‘which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.’ [Citation.] As to the former, lack of objection does not foreclose review.” (People v. Stowell (2003) 31 Cal.4th 1107, 1113.) Whether or not defendant has forfeited his claim regarding the criminal justice administration fee, we exercise our discretion to resolve this matter entirely on the merits.
With regard to the People’s ripeness argument, in our view the record shows that the trial court ordered defendant to pay the fees. Although the court referred defendant to the Department of Revenue for determination of ability to pay fines or fees, there is no indication in this record that any such referral or determination ever took place. On the other hand, the last pronouncement by the court ordered defendant to pay any fees that could be imposed, up to the amount that the court set in detail. This record satisfies us that the court made an order that was sufficiently definite to subject it to review, and we decline to adopt the People’s view that the matter is not ripe for review.
On the merits, however, the trial court’s order regarding fees is supported by substantial evidence of defendant’s ability to pay. “The term ‘ability to pay’ means the overall capability of the defendant to reimburse . . . costs . . . .” (§ 1203.1b, subd. (e).) Factors to be taken into account include “(1) Present financial position. [¶] (2) Reasonably discernible future financial position . . . [of no] more than one year from the date of the hearing . . . . [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing.” (Ibid.) Defendant’s sentence under confinement was only six months and the court made him eligible for work furlough while jailed. The probation report shows that defendant was working as a mail clerk at the time the report was written and that he was enjoying that job and wished to keep it. As we have noted, there appears to have been some evidence that defendant worked regularly at two chain stores in 2004. The probation report states that in 2003 defendant resigned from a position he had held since 1996 with a major retailer of electronic and durable consumer goods because the pay was too low. The record suggests that defendant has a stable residence and a supportive family. On this record, there is substantial evidence of defendant’s ability to pay the fees the court imposed.
Because the trial court erred in conditioning the grant of probation to defendant on his paying the probation-related fees, we will modify the judgment to affirm the trial court’s order to the extent it requires payment of the fees (subject, of course, to Department of Revenue evaluation) but reverse it insofar as it conditions the grant of probation on payment of the probation-related fees.
DISPOSITION
The conditions of probation are modified to delete the requirement that defendant pay the costs of probation investigation and supervision. To the extent, however, that the order requires defendant to pay those costs, subject to administrative determination of his ability to pay, it is affirmed. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.