Filed 2/21/14 P. v. Vetter CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064818
         Plaintiff and Respondent,
                                                                             (Super. Ct. Nos. 10CM2863,
                   v.                                                                11CM1723)

RANDY EARL VETTER,
                                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
         William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury found defendant Randy Earl Vetter guilty of burglary (Pen. Code, § 459)1
and theft (§ 484, subd. (a)) of a Wal-Mart. He was sentenced to a four-year term with
three years to be served in county jail and one year under post-release supervision.
       On appeal, Vetter contends: (1) the jury instructions on reasonable doubt violated
his right to due process; (2) the trial court abused its discretion by imposing the middle
term for the burglary conviction; (3) fees for probation services may not be imposed
because the trial court did not orally impose those fees; (4) the imposition of fees without
a determination of Vetter’s ability to pay was error; (5) the trial court erred by imposing
two, one-year enhancements for prison priors; and (6) he was denied effective assistance
of counsel because of various omissions by his attorney. The People concede the third
and fifth claims of error.
       We agree with the parties that Vetter may not be subject to fees that were not
orally announced by the court and that he should have received only one sentencing
enhancement for serving a single prior prison term. We therefore strike one, one-year
sentencing enhancement and order the court to correct the minute order for the sentencing
hearing. We remand the matter to the trial court to determine what portion of Vetter’s
three-year term will be served in county jail and what portion, if any, will be served under
mandatory supervision. In all other respects, we affirm the judgment.
                         FACTS AND PROCEDURAL HISTORY
       On the evening of April 30, 2011, Gerald Butts and Warren Arnold were working
together as plainclothes loss-prevention agents at a Wal-Mart in Hanford. The agents
were walking the floor conducting surveillance when Vetter caught their attention. Butts
first noticed Vetter in the cosmetics department with a woman, later identified as Tisha
Couch. They had a shopping cart. Vetter selected several items of cosmetics and “started
looking around a lot,” which was suspicious to Butts. Couch walked away with the cart,


       1Subsequent   statutory references are to the Penal Code unless otherwise noted.



                                             2.
and Vetter remained in the cosmetics area with some merchandise. Vetter then went to
the women’s underwear department where he met Couch and placed some items in the
shopping cart.
       Vetter took the shopping cart and walked to the men’s department by himself. He
selected several packages of socks, a wallet, and a belt and put them in the cart. He went
to the shoe department, selected a pair of boots, which were packaged in a box, and
placed the boot box in the cart. He headed to the front of the store with the cart and
stopped near a fitting room in the women’s department. Still alone, Vetter removed the
boots, two packages of socks, and two cosmetic items from the shopping cart and took
them to the jewelry counter, where he paid for the items. The merchandise was placed in
two plastic Wal-Mart shopping bags. Butts told Arnold to follow Vetter outside while he
remained in the store to look for Couch.
       Arnold followed Vetter out of the store and saw him walk across the parking lot to
his truck. From the front of the store, Arnold observed Vetter put the items he had just
purchased in the truck. Vetter first put the bagged items on the driver’s seat and then
removed the items from the bags. Vetter smoked a cigarette and put the empty plastic
Wal-Mart shopping bags in his pants pocket. After about five minutes outside, Vetter
walked back in the store.
       Arnold watched Vetter walk to the underwear department, where he met Couch.
She had a shopping cart. Vetter took a belt from the cart, removed its plastic hanger, and
put the belt on. Butts observed Vetter take a wallet out of the cart, take it out of a box,
and put it in his pocket. Arnold saw Vetter walk by himself to the shoe department and
take a box of shoes that looked like the shoes he had just purchased. Vetter went to the
men’s department and got some socks. He then walked back to the women’s underwear
department and met up with Couch. He took the empty Wal-Mart shopping bags out of
his pocket and put some socks, the shoe box, and some cosmetics in the shopping bags.




                                              3.
Vetter took some women’s underwear from the shopping cart and walked to the registers
at the front of the store. He was alone and without a shopping cart.
       At the register, Vetter placed the two shopping bags with the shoes and socks on
the floor. The cashier rang him up for the women’s underwear, and Vetter paid for the
items with a Red Cross debit card. He picked up the two shopping bags from the floor,
took the bag of items he paid for, and walked to the exit. At this point, Butts approached
Vetter and identified himself as Wal-Mart security. Arnold joined them. Butts asked
Vetter if he had any unpaid merchandise with him and Vetter said no. Butts told Vetter
that he saw him put the boots, socks, and cosmetics in the bags and put on the belt and
conceal the wallet. Vetter agreed to go to the loss-prevention office with the two agents.
       In the loss-prevention office, Arnold told Vetter, “I need the merchandise that you
bagged up back.” Vetter put the two bags of items he had not paid for on a table. The
bags contained shoes, socks, and some makeup. Vetter also started removing the belt he
was wearing. Butts said he would need the wallet back, and Vetter placed the wallet on
the table. The value of the merchandise taken was around $80. The store policy was to
call the police if the merchandise taken was worth $25 or more.
       Hanford Police Officer Mark Carrillo was dispatched to Wal-Mart. He met Vetter
in the loss-prevention office. Carrillo conducted a pat-down search of Vetter and found a
clothing label tag in his rear pants pocket. He noticed that Vetter was wearing more than
one shirt, and one of the shirts appeared to match the clothing tag. Vetter agreed to speak
with Carrillo. He told the officer that he had nothing and he needed to get some things.
Vetter said he did not come to Wal-Mart to steal and he was not a thief.
       Carrillo found that Vetter had $2.25 in cash, a Red Cross ATM card, which he had
received after his house burned down, and a brown leather day planner. Vetter said there
was about $80 on the Red Cross card. Carrillo saw that the day planner had a list of items
including boots, socks, hair scissors, safety pins, belt, and wallet. There was also a Wal-
Mart receipt.


                                             4.
       Carrillo was informed that Vetter had been stealing things together with a woman
who was still in the store. After speaking with Vetter, Carrillo met with Couch near a
clothing aisle. She appeared “[v]ery fidgety, nervous [with] rapid hand movements [and
a] stutter in her speech,” and Carrillo concluded that she was under the influence of
methamphetamine. In her purse was a shirt that was identical to one of the shirts Vetter
was wearing. Couch said Vetter put it there.
       The Kings County District Attorney filed a two-count information against Vetter
on September 6, 2011. The information alleged that Vetter unlawfully entered a
commercial building, Wal-Mart, with the intent to commit larceny (§ 459, burglary,
count 1) and stole the personal property of Wal-Mart (§ 484, subd. (a), theft, count 2). It
was further alleged that Vetter had four prior criminal convictions and had served a
prison term for those offenses. (§ 667.5, subd. (b).)
       On January 30, 2012, a jury trial began. The next day, outside the presence of the
jury, Vetter entered a conditional admission of two of the alleged prior convictions with
the understanding that this would result in a one-year enhancement to any sentence
imposed in the current case. Vetter admitted that, in June 2004, he was convicted of a
violation of former section 12312, possession of materials with intent to make an
explosive or destructive device, and former section 12303, possession of a destructive
device other than fixed ammunition. (Stats. 1978, ch. 579, § 46; Stats. 1983, ch. 1092,
§ 329.) The court struck the remaining allegations of prior criminal convictions at the
request of the People.
       Butts, Arnold, and Carrillo testified for the People. In addition to describing his
observations of Vetter, Arnold testified about the video surveillance system at Wal-Mart.
He reviewed surveillance recordings after the incident of April 30, 2011. Not every
portion of the incident was recorded. For example, there was no recording of Vetter
putting on the belt because there was no video camera at the underwear aisle where he put
the belt on.


                                             5.
       There were six video clips of Vetter: (1) at the cosmetics aisle, (2) at the jewelry
counter paying for items, (3) leaving the store after his first purchase, (4) reentering the
store, (5) at the register the second time he bought items, and (6) being stopped by Butts
and Arnold. These recordings were saved. Later, however, when an investigator from
the district attorney’s office requested surveillance video, only four of the clips were
available. The video clips of Vetter at the jewelry counter paying for items and reentering
the store had been taped over.2
       Arnold believed all six video clips were important to the investigation. Vetter’s
attorney asked what happened to the two missing clips. Arnold testified that, on the night
of the incident, they burned two discs of the six video clips—one for Wal-Mart and one
for the police. But when Arnold looked in the store’s file for the disc to respond to the
investigator’s request, it was not there.
       Vetter testified on his own behalf. He admitted that he had been convicted of
possession of a destructive device and possession of materials with the intent to make a
destructive device. He had entered a guilty plea and was sentenced to five years eight
months in prison for the offenses. He spent 2 years 10 months in prison and was paroled
in September 2007. He was discharged from parole 13 months later. Vetter described
these offenses as “like a hobby” that started with fireworks. He said, “[I]t progressed
from there. And, then, it went into other things and, then, a blasting cap ended up going
off in my hand.” The explosion blew off the tips of the index and middle fingers and
thumb of his left hand.
       Vetter said he went to Wal-Mart on April 29, 2011, and bought a belt, a wallet, and
a day planner. He paid for the items with a Red Cross debit card. A few days earlier,



       2Arnold did not tape over the video clips. He testified that when there were old
videos saved on the hard drive, other employees would erase them without checking what
they were.



                                              6.
Vetter had been in a fire, and he “got out with a pair of boxers .…” He lost everything
else he owned.
       On April 30, 2011, Vetter went to Wal-Mart with Couch, his girlfriend at the time.
He had about $45 in cash and the Red Cross card. He was wearing the belt and carrying
the wallet he had bought the night before. Vetter tried on a pair of boots while he was in
the store and left them on. He put the shoes he had been wearing in the box for the boots.
He bought the boots, socks, and some underwear. After he completed his purchase, he
went out to his truck and smoked a cigarette.3
       Then Vetter went back into the store to get Couch. He carried the two bags of
merchandise he had just purchased. Couch had a shopping cart that was completely full.
Vetter tried to coax her out of the store and told her that he only had about $17 or $20
left. Couch gave him a few of the items she most wanted, and he went to the front of the
store to pay for those items. At this point, Vetter had taken off the boots he had bought.
He testified, “[W]hen I came back in, I had taken the boots off, put them back in the box
and I grabbed a box of—a new box of boots and put those in there.”4 His attorney asked
why he exchanged the boots he had been wearing for another new pair, and Vetter
responded, “Something to do,” but he was not trying to defraud anybody.
       As Vetter walked out the door, someone said, “Randy, are you going to pay for
that,” and Vetter stopped. He put down all his shopping bags and Butts told him not to


       3Vetter disputed how far away he had parked from the entrance of the store.
Arnold testified that he watched Vetter from near the front of the store and Vetter’s truck
was parked five or six parking spaces from the store, a distance of about 50 to 100 feet
from Arnold. Vetter testified he parked much farther from the store, at a distance of
about 340 feet from the entrance. Vetter’s attorney argued it would be impossible for a
person standing so far away to see what Vetter was doing in the cab of his truck.
       4On  cross-examination, Vetter explained that he was still wearing the newly
purchased boots when he reentered the store. He went to the shoe section, took off the
boots and put on his old shoes (which had been in the shoe box). He then apparently left
the boots he had been wearing and took a new box of boots of the same kind.



                                             7.
worry about them. He went to a little office with Butts. Later, a woman came into the
office with Vetter’s bags. Butts talked about Wal-Mart’s procedures for dealing with
shoplifters. Vetter understood that it would be taken care of “civilly through Wal-Mart
and the person rather than going through the police department.”
       Vetter explained the shirt tag found in his pocket was from a shirt he had bought
the day before. He was wearing three or four shirts when he went into Wal-Mart because,
he said, “everything I owned was on my back.” The list Carrillo found in Vetter’s day
planner was a shopping list of things he wanted to get with the last of the money he had.
       Vetter testified that he went back into Wal-Mart to see why Couch had not come
out yet. He took his shopping bags with him to demonstrate to Couch that he was done
shopping. He did not steal anything from Wal-Mart; everything in his possession he paid
for.
       On January 31, 2012, the jury began deliberations and reached a verdict. The jury
found Vetter guilty of counts 1 and 2.
       At the sentencing hearing on April 11, 2012, the trial court imposed the middle
term of two years, plus two additional years for prison priors, for count 1. For count 2,
the court imposed 180 days, which it stayed pursuant to section 654. The court ordered
Vetter to serve three years of the four-year term in the Kings County Jail, followed by one
year of post-release mandatory supervision. Various fines and fees were also imposed.
Vetter filed a notice of appeal the same day.
                                         DISCUSSION
I.     CALCRIM No. 220
       The People and Vetter both requested jury instructions CALCRIM No. 220 and
CALCRIM No. 222. The parties had no objections to the trial court’s proposed jury
instructions, which included the requested instructions. The court read the instructions to
the jury and a copy was given to the jury for deliberations. The jury was given
CALCRIM No. 220 as follows:


                                                8.
       “220. [¶] The fact that a criminal charge has been filed against the
       defendant is not evidence that the charge is true. You must not be biased
       against the defendant just because he has been arrested, charged with a
       crime, or brought to trial.

       “A defendant in a criminal case is presumed to be innocent. This
       presumption requires that the People prove a defendant guilty beyond a
       reasonable doubt. Whenever I tell you the People must prove something, I
       mean they must prove it beyond a reasonable doubt unless I specifically tell
       you otherwise.

       “Proof beyond a reasonable doubt is proof that leaves you with an abiding
       conviction that the charge is true. The evidence need not eliminate all
       possible doubt because everything in life is open to some possible or
       imaginary doubt.

       “In deciding whether the People have proved their case beyond a reasonable
       doubt, you must impartially compare and consider all the evidence that was
       received throughout the entire trial. Unless the evidence proves the
       defendant guilty beyond a reasonable doubt, he is entitled to an acquittal
       and you must find him not guilty.”
       The jury was also given CALCRIM No. 222. In part, this instruction read, “You
must use only the evidence that was presented in this courtroom. ‘Evidence’ is the sworn
testimony of witnesses, the exhibits admitted into evidence, and anything else I told you
to consider as evidence.”
       On appeal, Vetter contends that CALCRIM No. 220’s definition of reasonable
doubt violated his due process right to have his guilt determined beyond a reasonable
doubt. He argues that the instruction “you must impartially compare and consider all the
evidence that was received through the entire trial” improperly limited the jury’s
determination of reasonable doubt to the evidence received at trial and precluded it from
considering the absence of evidence. Specifically in this case, there was no surveillance
videotape of him reentering Wal-Mart after he went to his truck and smoked a cigarette.
The video could have confirmed the prosecution witnesses’ testimony that he reentered




                                             9.
the store without the items he had just purchased or, on the contrary, showed that he was
carrying two full shopping bags as he claimed.
       Our court has considered this claim before. In People v. Zavala (2008) 168
Cal.App.4th 772, 780 (Zavala), the defendant argued that “CALCRIM No. 220
impermissibly precluded the jury from considering lack of evidence on the issue of proof
beyond a reasonable doubt.” We rejected the argument, observing that four recent
published opinions had also rejected the argument. (Id. at pp. 780-781, citing People v.
Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Flores (2007) 153
Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-
1510 (Westbrooks); People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)
       In Westbrooks, supra, 151 Cal.App.4th at pages 1505-1506, the defendant
Westbrooks similarly argued that CALCRIM No. 220 “improperly ‘limited the jury’s
determination of reasonable doubt to the evidence received at trial and precluded it from
considering the lack of physical evidence tying [him] to the offense .…’” The Court of
Appeal concluded that the instruction did not violate Westbrooks’s due process rights,
explaining:

       “CALCRIM No. 220 … merely instructs the jury that it must consider only
       the evidence presented at trial in determining whether the People have met
       their burden of proof. In other words, this instruction informs the jury that
       the People may not meet their burden of proof based on evidence other than
       that offered at trial. The instruction does not tell the jury that it may not
       consider any perceived lack of evidence in determining whether there is a
       reasonable doubt as to a defendant’s guilt. Further, the remainder of the
       instructions clearly conveyed to the jury the notion that the People had the
       burden of proving Westbrooks’s guilt beyond a reasonable doubt and that
       the jury was required to determine whether the People had met their burden
       of proving all of the facts essential to establishing his guilt.” (Westbrooks,
       supra, 151 Cal.App.4th at p. 1509.)
       We agree with the analysis of Westbrooks. Vetter acknowledges that the case law
is against him, but urges us to reconsider. We are not persuaded either that the cases cited
were wrongly decided or that the circumstances of this case call for a different analysis.


                                            10.
Accordingly, we reject Vetter’s claim that CALCRIM No. 220 improperly instructed the
jury on reasonable doubt. (Zavala, supra, 168 Cal.App.4th at p. 781.)
II.    Imposition of middle term for burglary conviction
       A.     Background
       The probation officer recommended the upper term of three years for count 1,
burglary. The officer took into consideration Vetter’s criminal record, his prior
unsatisfactory performance on probation, and the fact that he was on probation at the time
he committed the current offense. The officer identified no circumstances in mitigation.
       At the sentencing hearing, the trial court announced its inclination to impose the
upper term for count 1. The court stated that the manner in which the theft was
committed indicated “planning and criminal sophistication.” The court described the
offense as follows:

       “The defendant brought with him a list of items which he then entered the
       store and purchased to enable him to use those items to steal from the store.
       He then purchased the items, allowing him to have the receipt to first [cover
       up] and hide the item[s] of his theft, and secondly, to allow him to recover
       money for the purchased items by entering in a third time the store with the
       intent to defraud the store thereby indicating actual three entries, which
       would have been three separate burglaries, so that he could return the first
       set of items, retrieve the money for them, and still retain the second set of
       items that were stolen.”
       The court also noted that Vetter had numerous prior convictions, the current
offense was his sixth offense in eight years, and he was on probation at the time he
committed the current offense. Vetter had been granted probation twice and each time he
violated probation with new criminal conduct. The only mitigating factor the court found
was that the amount of the theft was only about $80. It appeared to the court that this
single mitigating factor was heavily outweighed by the aggravating factors.
       After stating its tentative ruling, the court invited argument from counsel. Vetter’s
attorney again pointed out that the amount of the theft was very small; in other
circumstances, it would be a petty theft case. He argued that Vetter’s criminal record,


                                            11.
while lengthy, did not indicate a predilection for theft or a tendency toward dishonesty.
Vetter had drug offenses and the incident “when he was playing with fireworks.” The
court then observed that the current offense was substantially less serious than the
possession of an explosive device, so “obviously the criminal conduct is going down, not
escalating.” Vetter’s attorney reminded the court that Vetter lost all his possessions in a
house fire, a circumstance that perhaps made his actions more understandable. The court
agreed that Vetter’s circumstances “would be mitigating.”
       The prosecutor recommended the middle term based on the small value of the
items stolen.
       The court decided to deviate from its tentative ruling, explaining:

       “I do think [defense counsel] brought up some mitigating factors I hadn’t
       fully considered in terms of the residential fire making Mr. Vetter homeless,
       and it would appear to be a theft of largely shoes and clothing, although
       there was a [planner] and some other items that didn’t appear to me to be
       within that category, and the fact that the criminal conduct does appear to
       be declining in seriousness as opposed to the previous convictions he’s
       had.”
       The court imposed the middle term of two years for count 1.
       B.       Analysis
       On appeal, Vetter contends the trial court committed reversible error in sentencing
Vetter to the middle term because it emphasized an aggravating factor that was not
supported by the evidence. In particular, Vetter argues the court’s statement that he
committed “three separate burglaries” was not supported by any evidence or argument
presented at trial.
       Section 1170, subdivision (b), provides, “When a judgment of imprisonment is to
be imposed and the statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court.”
       We review the trial court’s sentencing decision for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) “The trial court’s sentencing discretion must be


                                             12.
exercised in a manner that is not arbitrary and capricious, that is consistent with the letter
and spirit of the law, and that is based upon an ‘individualized consideration of the
offense, the offender, and the public interest.’ [Citation.] [A] trial court will abuse its
discretion … if it relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision. [Citations.]” (Ibid.)
       In his opening brief, Vetter discusses case law on residential burglary and urges us
not to consider each entry into a commercial building as a separate burglary offense. He
also points out that no evidence was presented showing Vetter intended to enter the Wal-
Mart a third time in order to return items for money. While we agree with Vetter that any
assumption he intended to return the originally purchased items would be speculation, we
are not convinced reversible error occurred in this case.
       First, we do not read the trial court’s statement about “three separate burglaries” as
demonstrating that the court relied on a belief that Vetter may have committed three
offenses as an aggravating factor. Rather, taken in context, we understand the court
simply to be describing a theft that, as it said, required some “planning and criminal
sophistication.” This was not an impulsive act, but a crime that took some thought and
time to execute.
       Second, “complaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons cannot be raised for the first
time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) Here, Vetter’s attorney did
not object to the court’s reference to “three separate burglaries,” although he was invited
to argue his position on sentencing. As a result, this contention has been forfeited.
       Third, a trial court’s sentencing error does not require reversal and remand if the
error does not cause prejudice, “i.e., it is ‘not reasonably probable that a more favorable
sentence would have been imposed in the absence of the error.’” (People v. Scott, supra,
9 Cal.4th at p. 355.) In this case, after hearing from Vetter’s counsel, the trial court
imposed the middle term for count 1 instead of the upper term, which had been its


                                             13.
tentative ruling. Assuming for the sake of argument that the trial court improperly
believed Vetter’s conduct constituted three separate burglaries and considered this an
aggravating factor, it is not reasonably probable that a more favorable sentence would
have been imposed in the absence of the assumed error. Vetter had many prior
convictions, spent years in prison, and was on probation at the time he committed the
current offense. The probation officer recommended the upper term, but the trial court
took into consideration the mitigating factors that Vetter was homeless and stole items he
needed to impose the middle term. In light of Vetter’s lengthy criminal history and poor
performance on probation, we are confident the trial court would still have imposed the
middle term in the absence of any improper consideration that Vetter may have intended
to commit “three separate burglaries.”
       Based on the foregoing, we conclude there was no reversible error in the trial
court’s imposition of a two-year term for count 1, burglary.
III.   Fees not orally pronounced by trial court
       At the sentencing hearing, the trial court also imposed a restitution fine, a court
operations fee, a court facilities funding assessment, and booking and release fees. The
court did not mention an assessment of $450 for preparation of a presentence
investigation report or an assessment not to exceed $20 per month for the cost of
probation services. These assessments, however, appear in the clerk’s minute order.5
       The People concede that, where there is a discrepancy between the oral
pronouncement of the sentence and a minute order of the proceedings, the oral
pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385
(Zackery).) “The clerk cannot supplement the judgment the court actually pronounced by


       5Somewhat    confusingly, these fees are listed on what appears to be the fourth page
of a four-page minute order dated April 11, 2012, but at the top right corner, it reads,
“Page 2 of 4.” The second page of the minute order is designated “Page 2 of 2,” and the
third page is designated “Page 2 of 3.”



                                             14.
adding a provision to the minute order and the abstract of judgment.” (Id. at pp. 387-
388.)
        In Zackery, supra, 147 Cal.App.4th at page 387, the minute order for a sentencing
hearing included a number of fines that had not been imposed orally by the trial judge at
the hearing. The Court of Appeal struck from the minute order and abstract of judgment
all of the fines that had not been announced by the court. (Id. at pp. 388-389.) Similarly,
in this case, we will direct the trial court to amend the minute order by striking the
assessments of (1) $450 for preparation of the presentence investigation report and
(2) amount not to exceed $20 per month for the cost of probation services.
        The People suggest we remand to the trial court to reconsider whether to impose
these assessments. We decline to do so. In Zackery, supra, 147 Cal.App.4th at page 389,
the Court of Appeal remanded the case to the trial court to determine whether to impose
two (but not all) of the fines it had struck. The reason for remand with respect to those
particular fines was that they were mandatory restitution fines under section 1202.4. (Id.
at pp. 388-389 [restitution fines must be imposed unless trial court finds compelling and
extraordinary reasons not to do so and states those reasons on record].) Here, the
assessments for probation costs are not mandatory, so there is no reason to remand for
reconsideration.
IV.     Ability to pay booking fees
        The trial court imposed a booking fee of $112 and another release fee of $25.
Vetter challenges the trial court’s imposition of these fees without first determining
whether he was able to pay the fees.6 He admits that he did not raise any objection to the
fees with the trial court, but he argues that he has not forfeited the issue.


        6Vetter makes the same argument with respect to the fees for the presentence
investigative probation report and for probation services. We have determined that those
fees must be deleted from the minute order because the trial court did not orally impose
those fees at the sentencing hearing.



                                              15.
       After the parties completed their briefing, however, the California Supreme Court
decided the forfeiture issue against Vetter. In People v. McCullough (2013) 56 Cal.4th
589, 591, the court held, “[A] defendant who fails to contest the booking fee when the
court imposes it forfeits the right to challenge it on appeal.” Accordingly, Vetter has
forfeited this argument.
V.     Sentencing enhancement for prior prison term
       On the second day of trial outside the presence of the jury, the court discussed with
Vetter his right to remain silent as well as his right to testify. The court explained that if
he chose to testify, he could be questioned about his prior felony convictions related to
possession of a destructive device, which the court determined were crimes of moral
turpitude. At that point, Vetter agreed to “enter into a conditional admission of his prison
prior .…” The court stated: “As I understood the conversation, everybody is in
agreement that while there’s four offenses,[7] they constitute a single prison term. In
other words, there were four convictions, but the terms were served at the same time, so it
constitutes one prison prior.” Vetter’s attorney and the prosecutor agreed there was only
one prior prison term.
       At the sentencing hearing, however, the court imposed two, one-year
enhancements for prior prison terms, resulting in a total term of four years. The People
concede this was an error. Since the parties agreed that Vetter served only one prior
prison term,8 he was subject to only one sentencing enhancement under section 667.5,
subdivision (b). Consequently, we will strike one of the two, one-year sentencing
enhancements.


       7In  addition to the two convictions related to possession of a destructive device,
the information alleged that Vetter had two convictions for drug-related offenses, for a
total of four convictions.
       8We  also observe that the information alleged only “a term was served” for
Vetter’s prior convictions.



                                              16.
       The correct term is three years—the middle term of two years plus one year for one
prior prison term. The trial court, in its discretion, may commit Vetter to county jail for
the full term or “suspend execution of a concluding portion of the term selected,” during
which time Vetter would be under mandatory supervision. (§ 1170, subd. (h)(5)(B)(i).)
We will remand the case to allow the court to exercise its discretion on this matter.
VI.    Ineffective assistance of counsel claim
       Finally, Vetter argues he was denied effective assistance of counsel based on
various omissions by defense counsel. He complains that his attorney (1) failed to object
to the court’s characterization of his conduct as indicating “three separate burglaries,”
(2) failed to object to the imposition of fines and fees without a determination of Vetter’s
ability to pay, and (3) failed to request a limiting instruction with respect to the evidence
that Vetter had prior felony convictions.
       To prevail on an ineffective assistance of counsel claim, Vetter must show both
that his attorney’s performance was deficient and that the deficiency caused him
prejudice. (People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.) When the reasons for
an attorney’s decisions are not apparent from the record, “‘we will not assume inadequacy
of representation unless counsel had no conceivable tactical purpose.’ [Citation.]”
(People v. Hines (1997) 15 Cal.4th 997, 1064.)
       Vetter’s claim that his attorney should have objected to the court’s statement
regarding “three separate burglaries” fails for lack of prejudice. As discussed above, we
have concluded that it is not reasonably probable a more favorable sentence would have
been imposed absent the consideration of “three separate burglaries.” Therefore, defense
counsel’s failure to object at the sentencing hearing did not prejudice Vetter.
       With respect to the claim that Vetter’s attorney should have objected to the
imposition of fees without a determination of ability to pay, the record does not disclose
why his attorney did not object. For example, it may be that his attorney knew Vetter, in
fact, had the ability to pay. On this record, we cannot say the failure to object constituted


                                             17.
inadequate representation. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-277
[where record sheds no light on why counsel acted in manner challenged, claim of
ineffective assistance of counsel should be denied on direct appeal; claim is generally
more appropriately litigated in habeas corpus proceeding].) Further, the probation
officer’s report noted that Vetter’s physical and mental health were good, and he worked
as a contractor, although he had not been able to find work “due to the economic
climate.” The fees Vetter now challenges amount to $137. Since he is physically able to
work, it is not reasonably probable that the trial court would have found him unable to
pay $137 if his attorney had objected and raised the issue of ability to pay. In other
words, Vetter has not demonstrated prejudice.
       Finally, we consider defense counsel’s failure to request a limiting instruction
regarding Vetter’s prior felony convictions. Vetter points out that, before he entered his
conditional admission of two prior convictions related to possession of a destructive
device, his attorney indicated his belief that a limiting instruction would be given.
Vetter’s attorney said, “The jury instructions, I believe, will instruct that you take the fact
of those felony convictions only to judge your veracity or your truthfulness and not to
judge whether or not you were more likely than not to have committed a new crime just
because you were convicted before.” No limiting instruction was given to the jury,
however, which appears to have been an oversight on the part of both parties.
       During his closing argument, Vetter’s attorney referred to Vetter’s convictions for
“incidents involving explosives,” noting that he had done his time, paid his debt to
society, and “successfully fulfilled his parole .…” He then told the jury: “I believe the
jury instructions will tell you you can use the fact of that conviction to decide whether or
not Mr. Vetter is telling the truth, but you can’t use it to decide he is more likely to have
committed this crime just because he was previously convicted of a felony. I mean, it
doesn’t necessarily make him a bad person and more likely to commit a crime because
he’s been convicted before, but you can use that to judge his credibility.”


                                              18.
       In his rebuttal argument, the prosecutor argued that Vetter had a motive to lie but
also suggested that prior convictions were not a proper reason to find him guilty of the
current charges. He said: “Who does have the motive to lie here? Mr. Vetter. He is the
one trying to avoid a conviction. He’s been convicted before. He’s been to prison. I
don’t hold that against him and I hope that you won’t either. But he’s been locked up.
He does not want to be locked up again.” (Italics added.)
       The People argue that, despite absence of a limiting instruction from the court, the
record does not lend itself to a reasonable probability that the jury misused evidence of
Vetter’s criminal record to find him guilty. We agree. The jury learned that Vetter had
been convicted of possession of a destructive device and possession of materials with the
intent to make an explosive or destructive device. Vetter explained that he had an interest
in fireworks and his “hobby” resulted in an explosion that damaged his hand. These
crimes were not particularly likely to inflame the jury, nor were they similar to the crimes
he was on trial for, namely, burglary and theft. The evidence against Vetter was strong.
Two loss-prevention agents testified that they observed Vetter steal from Wal-Mart. A
police officer testified that Vetter’s girlfriend had Wal-Mart merchandise in her purse,
and she said Vetter put it there. Under these circumstances, we do not believe Vetter’s
prior convictions, which had nothing to do with theft or dishonesty, would have been used
improperly by the jury to convict him. Stated differently, we conclude it is not reasonably
probable that the jury would have reached a more favorable result had a limiting
instruction been given. Again, Vetter’s claim of ineffective assistance of counsel fails for
lack of prejudice.
                                      DISPOSITION
       The judgment is modified to strike one sentencing enhancement under
section 667.5, subdivision (b). As modified, the judgment is affirmed.




                                            19.
       The trial court is directed to prepare an amended minute order for April 11, 2012,
deleting the assessments of $450 for preparation of the presentence investigation report
and an amount not to exceed $20 per month for the cost of probation services.
       The case is remanded to the trial court for consideration of how the three-year term
should be served pursuant to section 1170, subdivision (h)(5). The trial court will prepare
an amended abstract of judgment in accordance with this opinion and forward it to
appropriate prison authorities.


                                                                _____________________
                                                                              Hoff, J.*

WE CONCUR:


 _____________________
 Cornell, Acting P.J.


 _____________________
 Detjen, J.




       *Judge  of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                            20.
