Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05CF2846 Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Consolidated with a petition for writ of habeas corpus.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Anthony James Scarpinato appeals from a judgment after a jury convicted him of indecent exposure. He argues there was evidentiary error, instructional error, prosecutorial misconduct, and sentencing errors. Alternatively, in his petition for writ of habeas corpus, Scarpinato contends he received ineffective assistance of counsel because his trial counsel failed to object to the prosecutor’s alleged malfeasance. We ordered consolidation of the petition with the appeal. After briefing was complete, we requested the parties file supplemental letter briefs on the effect of People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825, on this appeal. As we explain below, we conclude his one-year sentence for his prior conviction and the trial court’s order requiring him to pay the costs for the preparation of the probation report must be reversed. In all other respects, we affirm the judgment. We deny the petition.
FACTS
Heliya Novinrad was visiting her boyfriend at a sober living facility when she began to feel ill. She went into her boyfriend’s bedroom to lie down. Scarpinato, her boyfriend’s roommate, was asleep on the top bed of a bunk bed. She lay down on thebottom bed of the bunk bed on the opposite side of the room. She fell asleep with her back to Scarpinato. When she woke up, Novinrad turned around and saw Scarpinato lying on the bed; he had one leg on the bed and the other leg hanging off the bed. He had his pants unzipped and was “wagging” and “stroking” his erect penis. Their eyes met. As Novinrad left the room, Scarpinato said, “‘Oh, do you see this shit?’” A couple seconds later, Scarpinato walked out of the room, and after having a “conversation with some people,” he left. Novinrad did not immediately tell her boyfriend what had happened because he was on parole and was “a little bit crazy,” but she called the police a few hours later and spoke with Officer Nivaldo Alvarez.
An information charged Scarpinato with indecent exposure with a prior conviction (Pen. Code, § 314, subd. (1)) (count 1); he was previously convicted of violating Penal Code section 314, subdivision (1). The information alleged he suffered a prior felony conviction (Pen. Code, §§ 667.5, subd. (b), 236). He stipulated he suffered a prior conviction for violating Penal Code section 314, subdivision (1), a misdemeanor.
At trial, in addition to offering testimony concerning this incident, the district attorney offered the testimony of Officer John Hougan. Hougan testified that in April 2001, when he was assigned to the sex crimes unit, he interviewed Scarpinato concerning an incident involving a young girl at an elementary school. Scarpinato told Hougan that he entered the girls’ bathroom at the elementary school at approximately 7:00 a.m., and hid in a stall. He listened to approximately four or five young girls urinate, which excited him. When another young girl was using the bathroom, he entered her stall and prevented her from leaving the stall. Scarpinato told her to “shush.” He unzipped his pants, pulled his underwear to the side, and pulled out his penis because he wanted to masturbate in front of her. The girl escaped by crawling underneath the stall. Scarpinato said he had a “problem” with this type of behavior and he thought about doing it once a week. Scarpinato also said he drove around in his car and exposed himself to females. He preferred to expose himself to 10-year-old girls. Scarpinato pleaded guilty to false imprisonment, and misdemeanor child molestation and indecent exposure as to the 2001 incident.
The district attorney moved to admit evidence of Scarpinato’s prior sexual acts pursuant to Evidence Code section 1108. The acts included an April 2001 incident in the girls bathroom at an elementary school, which we discuss in detail anon. The other acts included three incidents where Scarpinato exposed his penis to young girls while sitting in his car, and another incident where he was taking a shower and he masturbated in front of a girl who was using the restroom. Scarpinato opposed the motion. After considering the written submissions and hearing argument, the trial court admitted the evidence. The district attorney only offered evidence of the April 2001 incident.
Scarpinato rested on the state of the evidence. The jury convicted him on count 1.
The trial court sentenced Scarpinato to the upper term of three years on count 1 and a consecutive one-year term on the prior felony conviction for a total state prison term of four years.
DISCUSSION
I. Evidence Code section 1108 [ ]
All further statutory references are to the Evidence Code, unless otherwise indicated.
Relying on People v. Harris (1998) 60 Cal.App.4th 727 (Harris), Scarpinato argues the trial court abused its discretion in admitting evidence of his prior sexual acts. We disagree.
Section 1101, subdivision (a), prohibits the use of disposition or propensity evidence to prove a defendant’s conduct on a specific occasion. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, section 1108, subdivision (a), states, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352.” Section 1108 authorizes a trial court to admit “bad conduct evidence . . . to prove ‘predisposition’ to commit sex crimes.” (Harris, supra, 60 Cal.App.4th at p. 730.) Section 352, however, authorizes a trial court to exclude prior sexual offenses evidence. Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In Harris, the court articulated the following factors to determine whether evidence of prior sexual acts was properly admitted pursuant to section 1108: (1) the probative value of the evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) remoteness in time of the uncharged offenses; and (5) the amount of time involved in introducing and refuting the evidence of uncharged offenses. (Harris, supra, 60 Cal.App.4th at pp. 737-741.) We discuss each of the factors below.
The Attorney General does not discuss Harris, supra, 60 Cal.App.4th 727. Instead, the Attorney General cites to Falsetta, supra, 21 Cal.4th at p. 917, which states, “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.”
A. Probative Value
“[E]vidence of a ‘prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282-283.) “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under . . . section 1101, otherwise . . . section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 (Frazier), fn. omitted.) However, “if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (Branch, supra, 91 Cal.App.4th at p. 285.)
Scarpinato initially states the April 2001 incident was “somewhat probative” and later asserts its “probative value was questionable at best.” To support his claim, he highlights differences between the two cases, i.e., the victims’ age, he used force in the prior incident and he did not use force here, and he committed the prior act in a public place whereas he committed this act in a “private place.” In terms of admissibility, these differences do not matter. Similarity is not a requirement for admissibility pursuant to section 1108—it is enough both are sexual offenses as defined in section 1108. (Frazier, supra, 89 Cal.App.4th at p. 41.) The information charged Scarpinato with violating Penal Code section 314, subdivision (1). As to the April 2001 incident, Scarpinato pleaded guilty to violating Penal Code sections 647.6 and 314, subdivision (1), which are both sexual offenses as defined in section 1108, subdivision (d)(1). Additionally, evidence Scarpinato exposed his penis to masturbate in front of a young girl was relevant to whether he exposed his penis to masturbate in front of Novinrad. Therefore, the April 2001 incident was “‘indisputably relevant’” to the present offense. (Branch, supra, 91 Cal.App.4th at pp. 282-283.)
B. Inflammatory Nature
In Harris, the court, relying on People v. Ewoldt (1994) 7 Cal.4th 380, “deemed it important in evaluating prior uncharged acts pursuant to section 352, whether ‘[t]he testimony describing the defendant’s uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.’” (Harris, supra, 60 Cal.App.4th at pp. 737-738.)
Scarpinato relies on Williams v. Superior Court (1984) 36 Cal.3d 441, 452, People v. Wrigley (1968) 69 Cal.2d 149, 170, and Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 138, to argue admission of the April 2001 incident was highly prejudicial because it involved the victimization of a child. We agree with the general statement evidence of sexual abuse against a child can inflame a jury. However, none of the cases Scarpinato relies on involved section 1108 and the admission of evidence of prior sexual offenses. Section 1108 represents a legislative determination evidence of prior sexual acts is admissible in prosecutions of sex crimes because of the unique nature of these types of cases—subject, of course, to exclusion pursuant to section 352. Such evidence is not inadmissible solely because it involves a child, but must be evaluated on a case-by-case basis to determine any prejudicial effect.
While we do not close our eyes to the young age of the girl involved in the prior sexual offense, the evidence of the April 2001 incident is not so assuredly inflammatory to cause us to override the trial court’s exercise of its discretion. The evidence of the April 2001 incident did involve Scarpinato trapping a young girl in the stall of a girl’s bathroom at an elementary school, but it did not involve violence or the more gross sexual acts that can occur with a child. Though somewhat more inflammatory than the charged offense, evidence of the April 2001 incident was not so inflammatory as to unduly prejudice Scarpinato.
C. Confusion of Issues
It is possible the risk of juror confusion may increase when uncharged offenses are introduced as evidence. “If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at p. 284.) “This risk, however, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of a lewd act with a minor, and specifically that the jury ‘must not convict the defendant of any crime with which he is not charged.’” (Frazier, supra, 89 Cal.App.4th at p. 42.)
Scarpinato relies on the Boykin/Tahl form, which was admitted into evidence, to contend there was a risk the jury in this case would punish him for the April 2001 incident because the Boykin/Tahl form indicates Scarpinato could receive only six months for the two sexual offenses. The Boykin/Tahl form does state Scarpinato could receive six months for the two sexual offenses, but it also indicates the agreed upon sentence for the false imprisonment offense was two years for a total of two years and six months. Although the record is silent as to his exact sentence for the April 2001 incident, we are confident the jury was aware he was punished. And, any remaining risk of confusion was sufficiently countered by the trial court’s instructions. The jury was instructed on the elements of the charged offenses, reasonable doubt, and the proper use of evidence of prior sexual offenses. There is nothing in the record to indicate the jury was confused by Hougan’s testimony. (Branch, supra, 91 Cal.App.4th at p. 284.)
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
In his reply brief, Scarpinato states, “[he] was in prison for one offense, because he received a two year sentence . . . .”
D. Remoteness
“Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses.” (Branch, supra, 91 Cal.App.4th at p. 285.) “No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]” (Id. at p. 284.)
In his opening brief, Scarpinato claims that since he had not been convicted of any sexual offense in four years, the trial court should have excluded evidence of the April 2001 incident. After the Attorney General contended the sexual offenses were close in time, Scarpinato, in his reply brief, claims “a four year gap is not particularly close in time.” We find the former unpersuasive and disagree with the latter.
The fact Scarpinato had not been convicted of a sexual offense from April 2001 until September 2005, the time of the incident here, is not convincing on the issue of remoteness. Scarpinato acknowledges he was incarcerated in state prison for a portion of this time for violating section 236. But, Scarpinato argues this is the type of crime he could have committed in prison. We are not impressed.
Although Scarpinato acknowledges he was incarcerated in state prison, he maintains his one year prison term was supported by insufficient evidence.
As to the issue of remoteness, courts have found previous sexual offenses up to 30 years old not to be so remote in time as to preclude admission. (Branch, supra, 91 Cal.App.4th at pp. 284-285 [30-year gap between offenses was not remote]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [15 to 22-year time gap was not remote]; People v. Soto (1998) 64 Cal.App.4th 966, 992 [passage of 30 years did not automatically render prior incidents prejudicial].) Here, four years is not too remote.
E. Undue Consumption of Time
“Conceivably a case could arise in which the time consumed trying the uncharged offenses so dwarfed the trial on the current charge as to unfairly prejudice the defendant . . . we cannot say spending less than a third of the total trial time on these issues was prejudicial as a matter of law.” (Frazier, supra, 89 Cal.App.4th at p. 42 [uncharged offense evidence that comprised 27 percent of the total trial transcript did not consume an unreasonable amount of time].)
Here, Scarpinato focuses on the fact the district attorney’s witness list included 10 people who were to testify concerning the prior sexual offenses. However, the district attorney offered evidence on only one of the prior sexual offenses, the April 2001 incident. Hougan’s testimony spanned a total of 11 pages out of a total of 63 pages of testimony transcript, or 17 percent. We cannot conclude this consumed an undue amount of time.
Therefore, the trial court did not abuse its discretion in admitting evidence of the April 2001 incident.
II. CALJIC No. 2.52/Flight
Scarpinato argues the trial court erroneously instructed the jury with CALJIC No. 2.52, “Flight After Crime,” because there was insufficient evidence he fled. We disagree.
Scarpinato concedes he did not object to CALJIC No. 2.52 at trial, but contends appellate review of the issue is not waived because the instruction affects his substantial rights. (Pen. Code, § 1259.) The Attorney General did not respond to this point, and therefore, we will address the merits of the claim.
“‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328 (Bonilla).)
Here, the trial court instructed the jury with CALJIC No. 2.52 as follows: “The flight of a person after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilt or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.” (Pen. Code, § 1127c.)
Based on the entire record, we conclude there was sufficient evidence for the jury to conclude Scarpinato fled and permissibly infer a consciousness of guilt. Novinrad testified that a couple of seconds after she left the room, Scarpinato walked out of the room towards the front door. She stated that it appeared he was waiting to see if she was going to report what had happened. She said he had a “conversation with some people” and left. From this evidence the jury could infer Scarpinato fled the sober living facility to escape arrest and permissibly infer he was guilty of indecent exposure because had he truly been caught innocently masturbating, there would be no reason to flee his own bedroom in the sober living facility. The fact Scarpinato stopped to talk with someone and he was apprehended the next day after returning to the facility were additional factors the jury could consider in making its determination, but they do not render the evidence so deficient that it was error to instruct the jury with CALJIC No. 2.52. (Bonilla, supra, 41 Cal.4th at p. 329 [“The jury could attribute an innocent explanation to his conduct, but it could also infer that his departure and the circumstances thereof were consistent with and supported the prosecution’s theory”].)
Scarpinato suggests there could have been other reasons he left. True, there could have been other reasons he left, but he did not offer any evidence to support any of those reasons. Additionally, “Alternative explanations for flight conduct go to the weight of the evidence, which is a matter for the jury, not the court, to decide.” (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.) Scarpinato’s attempt to distinguish the facts of Rhodes does not persuade us the above quoted legal precept is faulty.
III. Prosecutorial Misconduct
Scarpinato claims the prosecutor committed three separate instances of misconduct during closing argument. We will address each in turn.
“A prosecutor’s misconduct 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.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 242.)
“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.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets . . . .”’” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951-952 (Stanley).)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970.)
Scarpinato concedes his trial counsel did not object to any of the statements he now claims constituted prosecutorial misconduct, but he claims an objection and a curative instruction would not have remedied any misconduct. He states that if we find he forfeited this claim, he received ineffective assistance of counsel. Because Scarpinato claims he received ineffective assistance of counsel in both his appeal, and by way of a petition for writ of habeas corpus, we will address the merits of his claim.
A. “Cop out”
Scarpinato complains the district attorney’s statement it would be a
“cop out” if the jury found reasonable doubt in this case because it lowered the burden of proof, put pressure on the jury to convict him, and “constituted a plea for the jury to nullify the verdict[.]” None of his contentions have merit.
It is not misconduct to remind the jury to do precisely what it is supposed to do: its duty. Nor is it improper for a district attorney to urge the jury to convict the defendant. (See People v. Bradford (1997) 15 Cal.4th 1229, 1380; People v. Wash (1993) 6 Cal.4th 215, 261-262.)
During rebuttal argument, the district attorney stated: “And what I ultimately ask you to do is to work together with each other, and hold him responsible for it. [¶] Defense counsel talked about reasonable doubt. And gave you what I refer to as typical defense arguments for jurors’ cop out. Maybe it is possible, possible, it could have, it might have. It’s so hard. You have a hard job. You have to evaluate the evidence. You have to work together to reach a just result. [¶] It is easy to go back in there and say, you know, reasonable doubt, it is possible, it could have, I am just not sure. It is a great cop out for not making a decision. This case cries out for a decision on your part. And in terms of the mere possibilities, the law on reasonable doubt directly addresses it. [¶] . . . [¶] Okay. I know that we would all like things tied up tight, and the way it works on [television], we get the cop out and we get every little piece and there aren’t those possibilities. Do you believe it happened? Has the evidence proved that? Yes. Overwhelmingly. The argument of the last time he did it he admitted to it, guess what, ladies and gentlemen, circumstance change, people change, the fact that he was willing to admit his conduct on a prior occasion should not sway you in this case. [¶] The factors involved then, his persona at that point, I don’t know. He has a right to his trial. Fine, he has had his trial, and I have proved his guilt. Your evaluation of the facts, and a common sense interpretation of the law, prove that. And they prove it beyond a reasonable doubt.”
Scarpinato cites to no authority, and we found none, that holds it is misconduct for a prosecutor to state if the jury finds there is reasonable doubt, it would be a “cop out.” The prosecutor essentially said that if the jury did not convict Scarpinato of the charged offense, it would not be doing its job. The district attorney may remind the jury to do its duty and convict the defendant. Additionally, when the portion of the complained of argument is read in its entirety, the district attorney informed the jury that it should not be influenced by Scarpinato’s prior sexual offenses and that the jury should evaluate the facts based on a common sense interpretation of the law. Nothing the district attorney said “could reasonably be interpreted as suggesting to the jury [it] did not have the burden of proving every element of the crimes charged beyond a reasonable doubt.” (People v. Hill (1998) 17 Cal.4th 800, 831.) And, Scarpinato does not attack the sufficiency of the evidence. Nor did the district attorney appeal to the passion and prejudice of the jury by asking the jury to suppose a loved one was the crime victim. (People v. Pensinger (1991) 52 Cal.3d 1210, 1250.) We conclude that the district attorney did not commit misconduct when he stated it would be a “cop out” if the jury found reasonable doubt because there is not a reasonable likelihood the jury understood or applied this comment in an improper or erroneous manner.
B. “Sex offenders are not specific offenders”
Scarpinato contends the district attorney improperly provided expert testimony, thereby circumventing evidentiary rules and denying him his constitutional right to confrontation. Again, we disagree.
During rebuttal argument, the district attorney said: “There is no requirement that there be a similarity between the two events. [Section] 1108 doesn’t require that. And there is a reason why. And that is the established precedent, as well as the legislative analysis, that sex offenders aren’t specific offenders. They may have preferences, but they are not, in the words of the Legislature and the court interpreting that legislation, many sex offenders are not specialists and commit a variety of offenses which differ in specific character. [¶] His disposition in his propensity is that of a sex offender. We have a sex crime here. The fact that he didn’t have an opportunity for his choice victim is not persuasive to you in terms of the probative value of that prior evidence.” (Italics added.)
While we agree with Scarpinato that a district attorney may not refer to facts not in evidence and make the prosecutor his or her own witness, we conclude the district attorney’s comments here, when read in their entirety, did not provide the jury with facts not in evidence. The district attorney referred to “established precedent” and the “legislative analysis,” legal authority supporting the admission of prior sexual offenses pursuant to section 1108. Just prior to those comments, the district attorney stated the law does not require similarity between the prior sexual offense and the charged offense, a correct statement of the law. The district attorney did not refer to any additional facts concerning Scarpinato’s past that was known to him, but not the jury, that pointed to his guilt. (People v. Hill (1998) 17 Cal.4th 800, 828; People v. Bolton (1979) 23 Cal.3d 208, 213.) Finally, during closing argument, Scarpinato’s trial counsel argued there was no similarity between the prior sexual offense and the charged offense. The district attorney foresaw defense counsel’s argument, and argued established legal authority did not require similarity. Therefore, based on complete reading of the rebuttal argument in question, we conclude the district attorney did not refer to facts outside the record and there is not a reasonable likelihood the jury understood or applied this comment in an improper or erroneous manner.
Scarpinato notes that the legal authority the Attorney General refers to actually states, “many sex offenders” suggesting this conclusion is not absolute. Although the district attorney did not say “many” in the first italicized sentence, he did say “many” in the second italicized sentence.
C. Section 1108 legislative history
Without specifying the specific offensive language, Scarpinato claims the district attorney committed prejudicial misconduct when he provided the jury with legislative intent underlying section 1108. Again, we disagree.
During rebuttal, the district attorney stated: “And the [section] 1108 evidence, it is not brand new to the law, but it is something specific to sexual offenses. And in discussing this law, there [are] cases that discuss it, and there is the Legislature that in enacting this law talked about some of the purposes of it. I would like to share some of it with you, and it has to do with the determination by the Legislature that the evidence is critical, given the serious and secretive nature of sex crimes, and often the resulting credibility contest at trial. [¶] . . . [¶] Let me talk a little bit more about what the Legislature was thinking in allowing prosecutors such as myself to bring this type of evidence to jurors. [¶] Speaking of the disposition to commit sexual offenses, this includes consideration of other sexual offenses as evidence of the defendant’s disposition to commit such crimes. And for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense. [¶] Within the vacuum outside of this case, outside of [section] 1108 we are left with what some might term, ‘he said, she said.’ We have one witness to the event. It is not unusual in sexual offenses, quite common. We have a victim who is immature and perhaps vulnerable. Also, not unusual. How is her credibility bolstered? By giving you folks a light as to the individual who committed this crime. Weighing her credibility versus the evidence of this disposition. [¶] Again the Legislature, the propensity to commit sexual offenses is not a common attribute among the general public, therefore evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim’s testimony. [¶] Again, we are on point with this case and the facts of this case. And it is similar to a lot of other sexual offense cases that take place here.”
Scarpinato contends the district attorney’s argument constituted misconduct because: (1) it referred to facts not in evidence; (2) the Legislature approved section 1108, and it is not the jury’s job to decide the law or whether to follow the law; (3) highlighting section 1108’s legislative history stressed the importance of the prior sexual offenses evidence; (4) it bolstered Novinrad’s credibility and decreased his credibility; and (5) it interfered with the jury’s duty as the sole judge of credibility.
First, a district attorney is entitled to explain the purpose of a criminal statute. Scarpinato does not suggest the district’s attorney’s characterization of the legislative intent was erroneous. Second, the district attorney was not asking the jury to decide the law. The district attorney was merely explaining the purpose of the law.
Third, we do not believe the district attorney’s comments regarding the purpose of section 1108 unnecessarily highlighted the prior sexual offense evidence. The district attorney explained the purpose of section 1108 and the unique nature of sex crime cases. As we explain above, later, the district attorney told the jury the prior sexual offense evidence should not influence them in this case.
Fourth, to the extent the prior sexual offense bolstered Novinrad’s credibility, the Legislature determined that the unique nature of sex crimes cases required admission of the evidence. To the extent the district attorney’s comment noted that legislative determination, it was not misconduct to explain the purpose of a criminal statute.
Finally, the district attorney did not interfere with the jury’s duty of determining the credibility of Novinrad. The district attorney explained the purpose of section 1108. The trial court instructed the jury on the appropriate use of the prior sexual offense evidence, including the burden of proof and that it could not rely solely on that evidence to convict Scarpinato of the charged offense. Therefore, there is not a reasonable likelihood the jury understood or applied the district attorney’s statements concerning the purpose of section 1108 in an improper or erroneous manner.
D. Cumulative effect
To the extent, if any, Scarpinato claims the cumulative effect of the alleged prosecutorial misconduct was prejudicial, we disagree. We have concluded there was no misconduct, and therefore, his claim has no merit.
E. Ineffective assistance of counsel
As we explain above, Scarpinato, in his appeal and his petition for writ of habeas corpus, claims he received ineffective assistance of counsel because his trial counsel did not object to the three instances of alleged prosecutorial misconduct. Not so.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.] ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny . . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 (Scott).)
In his petition, Scarpinato included a declaration from trial counsel. With respect to the first allegation of misconduct, trial counsel stated he did not remember the district attorney making the “cop out” statement. As to the other two allegations of misconduct, trial counsel stated he did not object because he did not believe the trial judge would give a limiting instruction and he did not want to validate the argument.
As we explain above, the district attorney’s statement it would be a “cop out” if the jury found reasonable doubt was not misconduct, and therefore, trial counsel’s representation did not fall below an objective standard of reasonableness. With respect to the district attorney’s comments concerning section 1108, trial counsel declared he did not object for tactical reasons—he believed the trial judge would overrule his objections thereby validating the district attorney’s argument. We do “not second-guess reasonable . . . tactical decisions in the harsh light of hindsight.” (Scott, supra, 15 Cal.4th at pp. 1211-1212.)
Additionally, there is not a reasonable probability Scarpinato would have received a more favorable result had the district attorney not made these statements. There was sufficient evidence Scarpinato was guilty of indecent exposure. When Novinrad woke up and turned around, Scarpinato was lying comfortably on his bed with one leg on the bed and one leg off the bed. He was “wagging” and “stroking” his erect penis. He did not cry out in horror or try to cover himself. Instead, he said, “‘Oh, do you see this shit?’” Clearly, this was not a man who was simply caught masturbating. Therefore, Scarpinato did not receive ineffective assistance of counsel.
IV. Sentence
A. Penal Code section 667.5, subdivision (b)-insufficient evidence
Scarpinato argues insufficient evidence supports his one-year term for his prior felony conviction because it was not found true or admitted. We agree.
Penal Code section 667.5, subdivision (b), states: “[T]he court shall impose a one-year term for each prior separate prison term served for any felony . . . .” Penal Code section 667.5, subdivision (d), provides, in relevant part, “The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.”
“Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.)
“When . . . a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court’s finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. In that regard, in conformity with the traditional rule governing appellate review, we must review the record in the light most favorable to the trial court’s finding(s). [Citation.]” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
Here, the following colloquy occurred before trial:
“[Trial court]: On the issue of the prior, do you want that bifurcated?
“[Defense counsel]: Yes, your honor.
“[Trial court]: Request is granted. The court will read the information through, well, there is another issue also, I will bifurcate the prior on page [two], lines [two] through [eight]. The reason this is a felony is because of the prior.
“[Defense counsel]: Yes, your honor.
“[Trial court]: The People are entitled to prove up that as part of their case.
“[Defense counsel]: Your honor, I am prepared to stipulate as to the prior. I think the [CALJIC No. 10.38] Use Note . . . state[s] that that can be excluded as priors.
“[Trial court]: Sure, if your client stipulates and admits the prior.
“[Defense counsel]: Yes, your honor.
“[Trial court]: Take that statement from your client, please, he has to waive his right to jury trial and confrontation, cross-examination, rights with regards to the issue of the jury, on page [one], line 24 through 27, prior conviction. Go ahead and speak to him and then take a waiver.
“[Defense counsel]: Okay. [¶] . . . Scarpinato, you have a right to a jury trial regarding all of the elements of the offense you are being charged with. One of the elements requires the district attorney to prove beyond a reasonable doubt that you have a prior conviction [Penal Code] section 314 as a misdemeanor. [¶] What I am asking the court to do is accept our stipulation that you were convicted of that, and that will lessen the scope of the trial to where the jury will not decide on that, it would be an issue that has been stipulated in front of the judge and not put on any evidence at trial. For purposes of the trial, do you agree to stipulate as to your prior conviction?
“[Scarpinato]: I do.
“[Defense counsel]: Join, your honor.
“[Trial court]: With that in mind, you understand you have a right on that issue to a jury trial. At a jury trial you have the right to the free services of the court to subpoena witnesses, the right to cross-examine witnesses through yourself or through your attorney, and testify or not on your own behalf; and with those rights in mind do you in fact stipulate and agree that you in fact committed a [Penal Code section] 314.1 on July 11, 2001, in the superior court of State of California, in and for the County of Orange, in case number 01HF0388?
“[Defense counsel]: Yes, your honor.
“[Trial court]: Now, why doesn’t that dispense with the necessity to try the prior conviction? Since he has entered a judicial confession and admission to a state prison prior. That’s a rhetorical question.
“[Defense counsel]: Yeah.
“[Trial court]: We are not going to have anything left.
“[Defense counsel]: Right.
“[Trial court]: As far as the prior goes.
“[Defense counsel]: Correct.
“[Trial court]: Except the determination whether he actually served a state prison commitment on it, okay.
“[District attorney]: And I do have that packet when it becomes necessary.
“[Trail court]: Okay.”
At the sentencing hearing, a deputy district attorney specially appearing for the deputy district attorney who tried the case, broached the issue of the prior conviction. The following colloquy occurred:
“[District attorney]: Your honor, I am sorry to interrupt, but as long as we are addressing mistakes in the report, I did notice there were at least two times that probation indicated there had been no resolution regarding the prior.
“[Trial court]: Yes, and that has been resolved by an admission. The probation officer did not pick up a minute order that was in the file. Is there any issue with regard to the prior conviction, [defense counsel]?
“[Defense counsel]: No, your honor.
“[Trial court]: In other words, [Scarpinato] has fully admitted the prior through the defense representation to the court, and there is no attack at all on inadequacy of the prior; is that correct?
“[Defense counsel]: No, your honor.
“[Trial court]: Okay. So it was just something the probation officer didn’t pick up.
“[District attorney]: Thank you.”
After hearing counsels’ argument, the trial court sentenced Scarpinato to the upper term of three years on count 1 and a consecutive one-year term for the prior felony conviction for violating Penal Code section 236 pursuant to Penal Code section 667.5, subdivision (b).
Scarpinato concedes his Boykin/Tahl form for the April 2001 incident establishes the first element, that he had a prior felony conviction. He claims, however, that it does not establish the other three elements. As we explain below, we conclude insufficient evidence supports the trial court’s imposition of the one-year prison term for violating Penal Code section 236.
Penal Code section 667.5, subdivision (d), requires a prior conviction to be either admitted or found true. It is clear that when Scarpinato stipulated to the prior conviction, he stipulated to violating Penal Code section 314, subdivision (1), a misdemeanor arising out of the July 11, 2001, incident. He did not stipulate to violating Penal Code section 236 arising out of the same incident, the prior felony conviction. When the deputy district attorney specially appeared and raised the issue of whether the prior felony conviction had been resolved, both the trial court and defense counsel stated it had. It had not because Scarpinato did not admit it was true. And based on our review of the record, the trial court did not find true that he suffered a prior felony conviction for violating Penal Code section 236, as required by statute. (Pen. Code, § 1158; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [“When no words used and . . . trier of fact fails to make a finding [that] effect is the same as a finding of ‘not true’”].)
The Attorney General relies on the Boykin/Tahl form, Hougan’s testimony, and defense counsel’s representations the matter had been resolved to contend sufficient evidence supports the prior conviction. The Attorney General cites to no authority, and we found none, to support its contention we may rely on a Boykin/Tahl form, witness testimony, or defense counsel’s representations to conclude Scarpinato was imprisoned as a result of the prior felony conviction, completed that term of imprisonment, and did not remain free for five years. Generally, “prison packets” are admitted in evidence for the purposes of proving the prior conviction or prison time. (Pen. Code, § 969b.) Here, one was not. The fact the Boykin/Tahl form indicates the parties stipulated to a two-year sentence on count 1 does not persuade us otherwise. (People v. Thornton (2006) 137 Cal.App.4th 241, 249 [“If defendant has detrimentally relied on . . . plea bargain such that the prosecutor is bound by the agreement, the trial court still has option to disapprove of the agreement”].) We recognize there was less than a five year span between the April 2001 incident and the current offense, but the record is void of any evidence establishing Scarpinato served a prior state prison commitment.
Finally, defense counsel’s representations that the issue of the prior felony conviction was resolved was not the equivalent of a stipulation or admission of the truth Scarpinato was imprisoned as a result of the prior felony conviction, completed that term of imprisonment, and did not remain free for five years. Defense counsel did not stipulate to any facts establishing Scarpinato served a prior state prison commitment. (See People v. Newman (1999) 21 Cal.4th 413, 421; People v. Adams (1993) 6 Cal.4th 570, 580.) This matter may be retried on remand. (Monge v. California (1998) 524 U.S. 721, 734; People v. Monge (1997) 16 Cal.4th 826.)
B. Dual use of fact
Scarpinato claims the trial court erroneously relied on his prior misdemeanor conviction for elevating the present offense from a misdemeanor to a felony and using the same prior misdemeanor conviction to impose the upper-term sentence. We disagree. The elevation of a misdemeanor to a felony based on a prior conviction does not constitute an element of the offense or a sentence enhancement within the purview of the dual use proscription. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1517-1519 .)
C. Blakeley
Scarpinato claims the trial court erroneously sentenced him to the upper term of four years on count 1 based on Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (Jan. 22, 2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), and their progeny. We disagree.
In Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at p. 860], the United States Supreme Court held California’s determinate sentencing scheme violates the Sixth Amendment, applying the rule it articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and its progeny that “the [f]ederal Constitution’s jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]”
In Black II, supra, 41 Cal.4th at page 805, the California Supreme Court responded to how Cunningham applies when an upper term is based on multiple factors and only some of them violate Cunningham. It explained that under our determinate sentencing system, the existence of a single aggravating circumstance is sufficient to make a defendant eligible for the upper term. “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Furthermore, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Ibid.)
Here, the probation report listed the following aggravating circumstances from California Rules of Court, rule 4.421 (rule 4.421): (1) rule 4.421(b)(2), his “prior conviction as an adult is serious in that it was a sex offense involving a six-year-old girl,” (2) rule 4.421(b)(3), he served a prior prison term, (3) rule 4.421(b)(4), he was on parole when he committed the current offense, and (4) rule 4.421(b)(5), his prior performance on parole was unsatisfactory.
At the sentencing hearing, the trial court denied Scarpinato probation based on the fact his prior performance on parole was unsatisfactory. The court selected the upper term of four years “stating as reasons for aggravating . . . [California Rules of Court], rule 4.421([b])(2), [Scarpinato’s] prior conviction as an adult. It was serious in that it was a sex offense involving a six-year[-]old girl.”
Scarpinato concedes the trial court selected the upper term based on his prior conviction for misdemeanor indecent exposure. He also agrees with the Attorney General the trial court reasoned that his prior misdemeanor indecent exposure conviction was serious, not that his crimes were of increasing seriousness. Thus, the issue is whether the trial court properly selected the upper term based on a prior serious misdemeanor conviction.
The Attorney General, relying on California Rules of Court, rule 4.408(a), states the trial court may rely on additional criteria reasonably related to the decision being made.
Here, there was no Cunningham error because the trial court could properly rely upon the factor Scarpinato had a prior misdemeanor conviction, which it described as serious. The jury trial principles discussed in Cunningham apply to facts that increase the penalty, other than the fact of a prior conviction. (Cunningham, supra, 549 U.S. At pp. ___ [127 S.Ct. at pp. 860, 864, 868].) Cunningham did not overrule the Almendarez-Torres v. United States (1998) 523 U.S. 224, exception to the Apprendi rule, i.e., a defendant does not have a federal constitutional right to a jury trial, for sentencing purposes, on whether the defendant has suffered a prior conviction. (See Apprendi, supra, 530 U.S. at pp. 487-488.)
“Prior convictions,” for Apprendi/Blakely/Cunningham purposes, are not limited to felonies. Nothing in these opinions states that a misdemeanor is not also a recidivist fact exempted from the requirement that a defendant is entitled to have the jury find all facts necessary for imposition of a punishment above the statutory maximum. The trial court may rely on additional criteria reasonably related to the decision being made. (Cal. Rules of Court, rule 4.408(a).) We decline Scarpinato’s invitation to find California Rules of Court, rule 4.421’s list of aggravating circumstances exhaustive.
Scarpinato argues his prior misdemeanor conviction does not fall into the Almendarez-Torres prior conviction exception to Apprendi because the trial court stated it was “serious.” We disagree. Once the trial court found Scarpinato had suffered a prior conviction, that was sufficient to impose the upper term. The fact the court also described it as serious, does not transform the otherwise objective prior conviction finding into a subjective one. We also reject Scarpinato’s claim relying on his prior misdemeanor conviction to select the upper term is a dual use of facts for the reasons stated above. Therefore, the trial court properly imposed the upper term of four years on count 1.
D. Costs of presentence report
Scarpinato asserts the trial court erroneously imposed a $2,762.71 fee for the probation report and there was insufficient evidence he had the ability to pay. We agree.
Penal Code section 1203.1b, subdivision (a), states: “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, . . . the probation officer . . . taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of . . . conducting any presentence investigation and preparing any presentence report made pursuant to [Penal Code] [s]ection 1203 . . . . The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. . . . The court shall order the defendant to appear before the probation officer . . . to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer . . . shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.”
Penal Code section 1203.1b, subdivision (b), provides: “When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative. The following shall apply to a hearing conducted pursuant to this subdivision: [¶] (1) At the hearing, the defendant shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the probation officer, or his or her authorized representative. [¶] (2) At the hearing, if the court determines that the defendant has the ability to pay all or part of the costs, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. [¶] (3) At the hearing, in making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. [¶] (4) When the court determines that the defendant’s ability to pay is different from the determination of the probation officer, the court shall state on the record the reason for its order.”
Penal Code section 1203.1b, subdivision (e), states: “The term ‘ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the preplea or presentence report . . . and shall include, but shall not be limited to, the defendant’s: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs.” (Italics added.)
Here, the probation report indicates Scarpinato’s current and past employment history as not reported. The report also states he did not want to discuss anything regarding the probation report despite the fact the probation officer advised him it would benefit him to provide information concerning the “social history section of the report[.]” The probation officer recommended Scarpinato pay $2,762.17 for the cost of preparing the felony presentence report in monthly payments. At his sentencing hearing, the trial court ordered Scarpinato to pay a $20 security fee, a $200 restitution fund fine, and $2,762.17 for preparation of the probation report pursuant to Penal Code section 1203.1b. When defense counsel asked the court if it would find Scarpinato was indigent and unable to pay, the court replied: “He is currently indigent and is incarcerated. He has an ability to earn funds in state prison. He is not indigent for purposes of this fee. So ordered. Thank you.”
Scarpinato contends he was denied his right to a hearing on his ability to pay and insufficient evidence supports the trial court’s finding he had an ability to pay because he has an ability to earn funds in state prison. We agree with his first contention, and therefore need not address his second claim.
While we agree with the Attorney General the hearing envisioned by the Legislature in Penal Code section 1203.1b can be an informal one held during the sentencing hearing (People v. Phillips (1994) 25 Cal.App.4th 62, 69-70), it is not void of procedural safeguards. During such a hearing, a defendant must have the opportunity to be heard in person, to present witnesses and other documentary evidence, to confront and cross-examine adverse witnesses, to disclosure of the evidence against the defendant, and to a written statement of the findings of the court or the probation officer, or his or her authorized representative (Pen. Code, § 1203.1b, subd. (b)). When Scarpinato’s defense counsel raised the issue, the trial court stated he was indigent, but that he had the ability to pay because he could earn money in state prison. We express no opinion on the court’s stated basis for finding Scarpinato had the ability to pay, but note Penal Code section 1203.1b, subdivision (e)(2), states the court, when considering “future financial position[,]” may not consider a period of time of more than one year from the date of the hearing. There is no evidence in the record Scarpinato had the ability to satisfy his financial obligations within one year of the hearing.
Relying on People v. Valtakis (2003) 105 Cal.App.4th 1066, 1075-1076 (Valtakis), the Attorney General claims that because defense counsel did not object to the trial court’s finding, request a formal hearing, or present evidence at the hearing, he waived his right to such a hearing. Not so. First, in Valtakis, defendant did not raise the issue at trial. Here, Scarpinato did raise the issue. Second, when defense counsel raised the issue, the trial court issued its ruling and stated, “So ordered. Thank you.” We agree with Scarpinato that in light of the trial court’s curt response, any further objection or request for a hearing would have been futile. (People v. Scott (1994) 9 Cal.4th 331, 356.) Therefore, the court’s order Scarpinato pay $2,762.17 for preparation of the probation report is reversed, and the case remanded to the trial court for it to conduct the hearing on his ability to pay these costs. (Pen. Code, § 1203.1b, subd. (f) [court may modify or vacate previous judgment on grounds of change of circumstances].)
DISPOSITION
We reverse Scarpinato’s one-year sentence for his prior conviction pursuant to Penal Code section 667.5, subdivision (b), and the court’s order requiring him to pay the costs for the preparation of the probation report pursuant to Penal Code section 1203.1b. We remand these matters for further proceedings consistent with this opinion. The judgment is affirmed in all other respects. We deny the petition.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.