Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI702302, John M. Tomberlin, Judge.
Susan S. Bauguess, 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, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant Eddie Gene Terry of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), during which he inflicted serious bodily injury (§ 12022.7, subd. (a)). In bifurcated proceedings, he admitted having suffered a prior conviction for which he served a prison sentence (§ 667.5, subd. (b)). He was sentenced to prison and appeals, claiming certain instructions given the jury were erroneous and the trial court improperly ordered him to reimburse part of the costs of his representation and his booking fees, and imposed a restitution fine and parole revocation restitution fine. We reject his contentions about the jury instructions and the fines. We agree with him about the costs of his representation and booking fees and therefore reverse those orders. Otherwise, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
Defendant jumped out from behind a bush and accosted his girlfriend’s husband as the latter was carrying four bags of groceries across a field. After the victim attempted to back away from defendant, defendant hit him on the back of the head with a softball sized rock. The victim fell to the ground and defendant hit him two more times in the head with the rock. After the victim’s wife screamed at defendant to stop, he dropped the rock, but hit the victim with his fist. Defendant picked up the rock again and hit the victim, severely injuring the latter’s right index finger. The victim got up and walked away, but defendant threw the rock at him, hitting him in the back.
Issues and Discussion
1. Jury Instructions
a. Judicial Council of California Criminal Jury Instructions, CALCRIM No. 302
The jury was given CALCRIM No. 302, which provides, “If you determine that there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” (CALCRIM No. 302, italics added.)
Defendant objects for the first time on appeal to this instruction, asserting that it “tells the jury it must ‘believe’ or be ‘convinced’ by evidence adduced at trial in order to decide a case.” However, defendant ignores the context of the instruction which addresses only those situations in which the juror has determined that there is a conflict in the evidence. Contrary to defendant’s assertion, this instruction does not insinuate that the defense is being held to a standard of proof that requires a jury to believe defense evidence in order to acquit. It merely directs a juror on how to decide between conflicting asserted facts—in this case, it would be the victim’s claim that defendant attacked him without provocation and even after he told defendant twice that he did not want to fight with him versus the defendant’s claim that after the victim threatened to kill him the night before, he hit the victim with the rock only because the victim had him on the ground and was choking him. Each juror had to decide which of these versions, if any, that juror believed and that this choice could not be irrational. Finally, the instruction told each juror that what was important when evidence conflicted was whether the testimony or other evidence supporting an asserted fact was qualitatively convincing, not whether it was merely supported by the testimony of a number of witnesses. This instruction did not, as defendant asserts, imply that a juror could not find reasonable doubt unless that juror believed the defendant’s testimony. Finally, because CALCRIM No. 302 does not address reasonable doubt or the absence of evidence, we cannot agree with defendant that it diminishes their role in a trial.
We see nothing wrong with telling a juror that he or she may not disregard the testimony of a witness without a reason. All this means is that a juror may not be irrational in his or her assessment of a witness’s credibility. It does not, as defendant asserts, create a presumption that all witnesses are deemed truthful. An identical contention was rejected in People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190 (Ibarra). The same is true of the instruction’s directive to not disregard the testimony of a witness “because of... a desire to favor one side or the other.” (CALCRIM No. 302.) There is nothing remarkable about this proposition, nor does it contradict the reasonable doubt concept. It merely directs a juror not to disregard the testimony of a witness for the prosecution because the juror wants to favor the defense nor a witness for the defense because the juror wants to favor the prosecution. In fact, there is no room in any trial for any juror to do anything out of a desire to favor one side or another. (See Ibarra, supra, 156 Cal.App.4th at p. 1191.)
Contrary to defendant’s assertion, this portion of the instruction is a reinstatement of former CALJIC No. 2.22’s provision that the final test in weighing conflicting evidence is not the number of witnesses who testified to a particular asserted fact, but the convincing force of any testimony and/or other evidence as to that fact. CALJIC No. 2.22 was approved by the California Supreme Court in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884. Defendant’s interpretation of this provision, i.e., that it suggests that the number of witnesses who testify about a certain point could be considered by a juror, is not improper. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1497.)
Defendant correctly points out that People v. Anderson (2007) 152 Cal.App.4th 919 upheld CALCRIM No. 302 against similar arguments. So did Ibarra, which we have cited here.
b. CALCRIM No. 223
Defendant also takes issue, for the first time on appeal, with CALCRIM No. 223, which provides, “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.” (CALCRIM No. 223.)
Defendant asserts that the italicized language “tells the jury that the defense has a duty to present evidence to disprove the charge.” Again, defendant takes the italicized language out of its context, which is that both circumstantial and direct evidence are acceptable types of evidence to prove or disprove elements of an offense, a matter that is beyond dispute. In no way does this language suggest that the defense has any obligation whatsoever to disprove anything.
c. CALCRIM No. 226
Defendant, again for the first time on appeal, takes issue with CALCRIM No. 226, which provides, “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
[] How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
[] How well was the witness able to remember and describe what happened?
[] What was the witness’s behavior while testifying?
[] Did the witness understand the questions and answer them directly?
[] Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
[] What was the witness’s attitude about the case or about testifying?
[] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
[] How reasonable is the testimony when you consider all the other evidence in the case?
[] [Did other evidence prove or disprove any fact about which the witness testified?]
[] [Did the witness admit to being untruthful?]
[] [What is the witness’s character for truthfulness?]
[] [Has the witness been convicted of a felony?]
[] [Has the witness engaged in [other] conduct that reflects on his or her believability?]
[] [Was the witness promised immunity or leniency in exchange for his or her testimony?]
Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] [If the evidence established that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.] [¶] [If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.] [¶] [If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]” (CALCRIM No. 226)
Defendant repeats the argument he made in connection with the other two now-disputed instructions, i.e., that CALCRIM No. 226 suggests to the jury that defendant is required to disprove some element of the offense. It says nothing of the kind.
Having rejected defendant’s assertion that these instructions contain constitutional errors, we also reject his contention that it is reasonably likely the jury applied any of them in a way that violated the constitution.
2. Fines, Fees and Reimbursement of the Costs of Representation
Less than a day after being convicted, and immediately after admitting that he had suffered a prison prior, defendant waived his rights to be sentenced at a later date and to have a probation report prepared and he requested immediate sentencing. After the court sentenced defendant to prison, it imposed a $1,400 restitution fine, a $1,400 parole revocation restitution fine, which would be stayed permanently unless parole was revoked, and ordered defendant to pay $500 towards the cost of his representation and $79.86 to the city where he was arrested as a booking fee. Neither defendant nor defense counsel said anything.
In exchange for his admission, the trial court agreed to sentence defendant to the midterm for the assault.
Defendant here contends that the trial court’s failure to hold a hearing to determine his ability to pay $500 towards the cost of his representation requires reversal of that order. He also asserts that the record is devoid of any evidence to support the trial court’s order, therefore it must be reversed.
Section 987.8 provides in pertinent part, “(b) In any case in which a defendant is provided legal assistance,... through the public defender..., upon conclusion of the criminal proceedings in the trial court,... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.... [¶]... [¶] (g) As used in this section:... (2) ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him... and shall include, but not be limited to... [¶]... [¶] (B) The defendant’s reasonably discernible future financial position.... Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his... defense.” (§ 987.8)
“‘[P]roceedings to assess attorney’s fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing.’ [Citations.] Under [section 987.8,]... the defendant must be given notice and afforded specific procedural rights, including the right to present witnesses at the hearing and to confront and cross-examine adverse witnesses.” (People v. Phillips (1994) 25 Cal.App.4th 62, 72-73.)
While we recognize that defendant’s failure to object at the sentencing hearing to the trial court’s imposition of this order may be viewed as a waiver of his argument concerning notice and a hearing (see People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395; People v. Phillips, supra, 25 Cal.App.4th at p. 75; People v. Brown (1970) 13 Cal.App.3d 876, 882 [overruled on other grounds in People v. Chi Ko Wong (1976) 18 Cal.3d. 698, 716]), the order must be supported by substantial evidence and this is not waived by the failure to object below. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) Here, because there was no hearing, there was no evidence of defendant’s ability to pay. Therefore, the order will be reversed.
The $1,400 restitution fine was imposed under section 1202.4, which provides in pertinent part, “The court... shall order the defendant to pay... [¶] [a] restitution fine... [¶]... [¶]..., unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense... [between] $200[] and... $10,000.... [¶]... [¶]... A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the... $200... minimum.... [¶] In setting the amount of the fine... in excess of the... $200... minimum, the court shall consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission.... Consideration of a defendant’s inability to pay may include his... future earning capacity. A defendant shall bear the burden of demonstrating his... inability to pay.” (§ 1202.4.)
Defendant contends that the trial court abused its discretion in setting the amount of this fine because there was no showing of defendant’s ability to pay more than the mandatory minimum of $200. However, ability to pay is but one of the factors a trial court must consider in determining the amount of the fine. It must also consider the seriousness and gravity of the crime and the circumstances of its commission. Defendant could have killed the victim or caused him serious permanent injury. Even if the trial court determined that defendant had no ability to pay, under these circumstances, we cannot agree that the trial court abused its discretion, i.e., acted outside the bounds of reason, in selecting the fine it did.
Section 1202.45 requires that the parole revocation restitution fine be in the same amount as the restitution fine, therefore our reasoning applies to both fines. Based on our conclusion, defendant’s “fall back” position that his attorney was incompetent for failing to object to the imposition of these fines, is also unmeritorious because, under these circumstances, he cannot demonstrate that even if counsel had objected and showed that he had no ability to pay, it is reasonably probable a lesser fine would have been imposed. (See Strickland v. Washington (1984) 466 U.S. 668, 694.)
Moreover, in People v. Romero (1996) 43 Cal.App.4th 440, 443, 447, the defendant contended that his restitution fine was erroneously imposed because the record contained insufficient evidence of his ability to pay. The appellate court held, “... [S]ection 1202.4 also provides, ‘A defendant shall bear the burden of demonstrating lack of his... ability to pay.’ This express statutory command makes sense only if the statute is construed to contain an implied rebuttable presumption, affecting the burden of proof, that a defendant has the ability to pay a restitution fine.... The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on the defendant to prove lack of ability. Where, as here, a defendant adduces no evidence of inability to pay, the trial court should presume ability to pay.... Since here defendant’s ability to pay was supplied by the implied presumption, the record need not contain evidence of defendant’s ability to pay.” (Id. at pp. 448, 449.)
Finally, defendant contends that Government Code section 29550.2, subdivision (a) requires the trial court find he had the ability to pay before he could be ordered to pay his booking fees. That subdivision provides, “If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person....” The section requires that defendant have the ability to pay, therefore, it is more akin to the provisions for the reimbursement of the costs of representation. We agree with defendant that there is no evidence on the record before us that he had that ability, therefore, despite his failure to object below, the order must be reversed.
Disposition
Defendant’s conviction, the true finding, his prison sentence and the imposition of the restitution fine and the parole revocation restitution fine are affirmed. We reverse the order that defendant pay $500 towards the cost of his representation and $79.86 for booking fees.
We concur: McKINSTER, J., RICHLI, J.