Filed 6/2/15 P. v. Guerrero CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064860

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD249146,
                                                                                    SCE327983)
JIOVANI GUERRERO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Laura H.

Parsky, Judge. Affirmed in part, reversed in part, and remanded.

         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

A. Natasha Cortina, Kelley Johnson and Kristen Kinnaird Chenelia, Deputy Attorneys

General, for Plaintiff and Respondent.

         In a prior case (San Diego Super. Ct. No. SCE327983) defendant Jiovani Guerrero

entered a plea agreement under which he pleaded guilty to one count of transportation of

a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and admitted the truth of
three "prison prior" allegations (Pen. Code, §§ 667.5, subd. (b) & 668).1 He received a

sentence of a stipulated seven-year prison term, comprised of a four-year stipulated term

for the drug transportation violation and three terms of one year each for the prison prior

allegations, stayed to permit him to participate in drug court. However, less than three

months later, an information was filed in the present case (San Diego Super. Ct. No.

SCD249146) charging Guerrero with felony evading an officer with reckless driving

(Veh. Code, § 2800.2, subd. (a), count one), misdemeanor hit and run driving (Veh.

Code, § 20002, subd. (a), count two), misdemeanor vandalism (§ 594, subd. (a),

(b)(2)(A), count three), misdemeanor driving on a suspended license (Veh. Code,

§ 14601.1, subd. (a), count four), and misdemeanor possession of paraphernalia used for

narcotics (former Health & Saf. Code, § 11364.1, subd. (a), count five). The information

also contained three prison prior allegations (§§ 667.5, subd. (b) & 668) and eight

probation denial prior convictions (§ 1203, subd. (e)(4)).

       A jury convicted Guerrero of all counts in the present case and, in a bifurcated

proceeding, the trial court found true the prison prior allegations. The court sentenced

Guerrero in the present case to a term of eight months in prison on count one, a term of

180 days in local custody on count two, stayed pursuant to section 654, a one-year term

in local custody on count three, two terms of 180 days in local custody on counts four and

five to be served concurrently, and three 1-year terms for the prison prior allegations.

The court also imposed the stipulated four-year prison term based on his guilty plea (in


1      All further statutory references are to the Penal Code unless otherwise specified.

                                             2
the prior case) to the count alleging a violation of Health and Safety Code section 11379,

subdivision (a), to be served consecutive to the term imposed in case No. SCD249146,

for a total term of seven years eight months in prison plus a one-year term in local

custody. The court also imposed restitution and parole revocation fines, a drug program

fee, and other fees.

       On appeal, Guerrero argues (1) the evidence was insufficient to support the

vandalism conviction, (2) the court should have stayed under section 654 the term for his

conviction for driving on a suspended license, and (3) the imposition of a drug program

fee was improper.

                                               I

                                            FACTS

       On the evening of June 24, 2013, San Diego Police Officers McGruder and Yee

were patrolling when they saw a car parked illegally in an alley known for drug dealing.

However, after they ran the plates and determined the car was not reported stolen, they

continued on to other matters. However, they later saw the car leave the alley and, after it

"just took off" at a high rate of speed, the officers got back into their patrol car, activated

the patrol car's lights and siren, and pursued it. The driver (later identified as Guerrero)

did not yield. Instead, during the ensuing pursuit, Guerrero broke numerous traffic laws.

       The pursuit ended temporarily when Guerrero turned into a cul-de-sac and

Officers McGruder and Yee attempted a "hot stop." They exited their car with firearms

drawn and ordered the occupants to "put [their] hands up." The front passenger complied

but the driver (Guerrero) was still attempting to drive the car, revving the engine and

                                               3
moving the car forward and then reversing. Officer McGruder approached the passenger

side, shattered the window, saw Guerrero was driving, and ordered him to take the keys

out of the ignition. Instead, Guerrero reversed the car, which hit the patrol car and

damaged the patrol car's front "push-bumper." Guerrero was able to drive off, and the

ground pursuit was temporarily terminated.

       Officer Gonzalez, a tactical flight officer flying that night in a police helicopter

known by the acronym ABLE (for Airborne Law Enforcement), flew to assist the officers

on the ground. Officer Gonzalez video-recorded the part of the pursuit at which he was

present and the recording was played for the jury. After Guerrero drove away from the

cul-de-sac, the helicopter followed to where Guerrero stopped and got out of the car.

Officers responded to the location and eventually arrested Guerrero at an apartment

complex in that area. Officers found a bulbous glass pipe of a type commonly used to

smoke narcotics on Guerrero's person.

       The car driven by Guerrero had extensive damage to its front left fender and right

rear fender. An exhibit from the DMV showed Guerrero's driver's license had been

suspended in December 2003 and never reinstated.

                                              II

                                        ANALYSIS

       A. Substantial Evidence Supports the Misdemeanor Vandalism Conviction

       Guerrero contends the evidence was insufficient to support the misdemeanor

vandalism conviction because there was no evidence he intended to damage the police

car when he evaded the officers by driving away.

                                              4
        Section 594, subdivision (a), provides that every person who "maliciously"

defaces, damages or destroys property belonging to another is guilty of vandalism and

where, as here, the amount of damage is less than $400, the offense is a misdemeanor.

(Id. at subd. (b)(2)(A).) "[T]he term 'maliciously,' defining the requisite mens rea of the

offense, 'import[s] a wish to vex, annoy, or injure another person, or an intent to do a

wrongful act, established either by proof or presumption of law.' " (People v. Campbell

(1994) 23 Cal.App.4th 1488, 1493, citing § 7, subd. 4.)

        Ordinarily, the use of the term "malice" or "maliciously" in a penal statute is an

expression of general criminal intent. (See People v. Atkins (2001) 25 Cal.4th 76, 85-86

[explaining the difference between general and specific intent in the context of the arson

statute].) Use of the term "malice" does not transform an offense into a specific intent

crime, but the "malice requirement ensures that the act is 'done with a design to do an

intentional wrongful act . . . without any legal justification, excuse or claim of right.' "

(Id. at p. 88.) Requiring evidence the defendant acted with malice ensures the proscribed

act was "a deliberate and intentional act, as distinguished from an accidental or

unintentional . . . act . . . ." (Ibid.)

        Although the vandalism statute does require proof the defendant "maliciously"

defaced, damaged or destroyed another person's property, vandalism is a general intent

crime and the requisite mens rea can be demonstrated by proof the defendant intended to

do the act that caused the resulting harm. In People v. Kurtenbach (2012) 204

Cal.App.4th 1264, this court recently addressed whether a conviction for vandalism could

be sustained when a neighboring home suffered damage caused by a defendant's

                                               5
wrongful act of setting fire to his own property, but there was no evidence the defendant

intended to damage the neighboring home. The jury was instructed the "malice" required

for vandalism is when the defendant acted by " 'intentionally do[ing] a wrongful act or

when he or she act[ed] with the unlawful intent to annoy or injure someone else' " (id. at

p. 1281), and during deliberations the jury asked (as to the vandalism count) whether the

" ' "wrongful act" need to be directed towards property not owned by the defendant?' "

(Ibid.) The trial court instructed the jury that the wrongful act " 'need not be "directed"

towards anyone.' " (Ibid.) The defendant asserted that was error, arguing vandalism

required the defendant act maliciously toward the victim and therefore the jury should

have been instructed the wrongful act needed to be directed toward the victim of the

damage. (Ibid.) This court rejected the defendant's argument, explaining at page 1282:

          "To commit vandalism a defendant must do an act 'maliciously.
          [Citation.] However, as we have stated, a person acts maliciously
          either when acting with 'a wish to vex, annoy, or injure another
          person' or with the 'intent to do a wrongful act.' [Citation.] As our
          Supreme Court has explained, the first type of malice . . . is known
          as '[m]alice in fact' and 'consists of actual ill will or intent to injure.'
          (In re V.V. (2011) 51 Cal.4th 1020, 1028 . . . .) However, the second
          type of malice . . . is known as 'malice in law.' (In re V.V., at
          p. 1028.) 'Malice in law may be "presumed" or "implied" from the
          intentional doing of the act without justification or excuse or
          mitigating circumstances.' (Ibid.) [¶] Based on the definition of
          'malice' contained in section 7, subdivision 4, in making a finding on
          whether Kurtenbach acted maliciously when damaging the
          neighbors' house the jury was not limited to the theory of malice in
          fact, and it was thus not required to find that Kurtenbach acted with
          an intent to do damage to that house. Because of the theory of
          malice in law, the jury could find that Kurtenbach acted maliciously
          based on his commission of any wrongful act that caused damage to
          the neighbors' house. In this case, Kurtenbach's wrongful act was
          his participation in the arson of his house. That wrongful act
          collaterally damaged the neighbors' house, satisfying the definition

                                               6
          of vandalism. Because the theory of malice in law was applicable to
          the vandalism count, the trial court was not required, as Kurtenbach
          claims, to instruct the jury that the wrongful act had to be directed
          toward causing damage to the neighbors' house. It properly
          instructed the jury that '[t]he wrongful act need not be "directed"
          towards anyone.' "

       We believe the reasoning of Kurtenbach is controlling here. Guerrero does not

dispute the evidence was ample to show he intentionally committed a wrongful act (of

evading the police) and, in doing so, damaged the police car. It is unnecessary to show

Guerrero intentionally hit the police car because, under the implied in law aspect of

malice, "the jury could find that [Guerrero] acted maliciously based on his commission of

any wrongful act that caused damage to the [police car]." (People v. Kurtenbach, supra,

204 Cal.App.4th at p. 1282.) Guerrero argues Kurtenbach's rationale should be limited to

cases in which the property damage giving rise to the vandalism charge was the natural

consequence of an intentional wrongful act that was itself an inherently destructive act.

However, Guerrero cites no authority for limiting implied-in-law malice under section 7,

subdivision 4, to inherently destructive acts, and we decline to impose such a limitation

here, particularly when (as here) the wrongful act involved conduct that carries the very

risk of harm to property that in fact ultimately resulted from Guerrero's conduct.2 We

conclude there was substantial evidence to support the conviction for misdemeanor

vandalism as alleged in count three.




2       The wrongful act for felony evading an officer with reckless driving required
proof Guerrero fled or attempted to elude a pursuing peace officer in violation of Vehicle
Code section 2800.1 "and the pursued vehicle is driven in a willful or wanton disregard
for the safety of persons or property . . . ." (Veh. Code, § 2800.2, subd. (a), italics added.)
                                                7
       Guerrero also contends, and the People concede, that if we conclude substantial

evidence supports his conviction of misdemeanor vandalism, his sentence for that

conviction should have been stayed under section 654 because it arose from the same

intent and objective as his conviction for felony evading an officer with reckless driving

(Veh. Code, § 2800.2, subd. (a), count one). We accept the People's concession and, on

remand, the trial court is directed to amend the sentence to reflect the sentence on count

three is stayed pursuant to section 654.

       B. The Concurrent Sentence for Driving on a Suspended License Was Proper

       Guerrero asserts the trial court should have stayed under section 654 his

concurrent sentence for the conviction of misdemeanor driving on a suspended license

(Veh. Code, § 14601.1, subd. (a), count four) because it stemmed from the same act and

objective as the conviction for felony evading. He asserts that People v. Jones (2012) 54

Cal.4th 350 (Jones), by overruling In re Hayes (1969) 70 Cal.2d 604 and holding instead

that "[s]ection 654 prohibits multiple punishment for a single physical act that violates

different provisions of law" (Jones, at p. 358), compels the conclusion that his single

criminal act here—of evading police while driving on a suspended license—can only be

punished once.

       Applicable Law

       Section 654, subdivision (a), provides in pertinent part, "[a]n act or omission that

is punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision." Section 654

                                             8
" 'precludes multiple punishment for a single act or for a course of conduct comprising

indivisible acts. "Whether a course of criminal conduct is divisible . . . depends on the

intent and objective of the actor." [Citations.] "[I]f all the offenses were merely

incidental to, or were the means of accomplishing or facilitating one objective, defendant

may be found to have harbored a single intent and therefore may be punished only once."

[Citation.]' " (People v. Spirlin (2000) 81 Cal.App.4th 119, 129.) However, if the

defendant harbored "multiple or simultaneous objectives, independent of and not merely

incidental to each other, the defendant may be punished for each violation committed in

pursuit of each objective even though the violations share common acts or were parts of

an otherwise indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th

263, 267-268.)

         Whether section 654 applies under the facts of any specific case "is a question of

fact for the trial court, which is vested with broad latitude in making its determination.

[Citations.] Its findings will not be reversed on appeal if there is substantial evidence to

support them. [Citations.] We review the trial court's determination in the light most

favorable to the respondent and presume the existence of every fact the trial court could

reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139,

1143.)

         Analysis

         We are convinced there was some evidence from which the trial court could

conclude section 654 did not preclude punishment for both the driving on a suspended

license conviction and the evading police conviction. The evidence showed Guerrero

                                              9
first drove the car away from its parking spot in the alley before police even began to

follow it. After the officers observed the vehicle driving off, at a speed in excess of the

normal limits, they decided to pursue the vehicle and only then did they activate the lights

and siren in their patrol car. There was therefore some evidence to permit the conclusion

that Guerrero first drove on a suspended license and, subsequent to that crime and in

reaction to the lights and siren of the patrol car, formed the new intent and purpose of

(and began engaging in the conduct forming the basis for) the felony evading police

crime.

         Guerrero argues this analysis is foreclosed by Jones's decision to overrule Hayes.

However, Guerrero's argument ignores that Jones also cited In re Michael B. (1980) 28

Cal.3d 548, 556-557, which upheld (albeit by reliance on Hayes) multiple punishments

for vehicle theft and driving without a license for a defendant who stole a car and then

drove it, and People v. Butler (1986) 184 Cal.App.3d 469, 471-474, which upheld (again

relying on Hayes) multiple punishments for vehicular manslaughter and felony hit and

run for a defendant who struck a car, killed the victim and then left the scene. The Jones

court specifically noted that, although it disapproved Hayes, "it appears that Michael B.

[and] Butler . . . may have been correct even apart from Hayes." (Jones, supra, 54

Cal.4th at pp. 357-358, italics added.) Thus, Jones apparently approved the imposition of

multiple punishments on facts analogous to those considered in Michael B. and Butler,

and the facts here are more like those confronted by the courts in Michael B. and Butler

(where the offenses were committed serially) than by the facts of Jones (where the

offenses were committed simultaneously). We conclude Jones does not bar the trial court

                                              10
from impliedly finding section 654 did not bar imposition of separate sentences for

Guerrero's separate convictions of evading police and driving on a suspended license.

        C. Guerrero Forfeited His Challenge to Imposition of the Drug Program Fee

        Guerrero asserts the court erred by imposing on him a drug program fee without

determining his ability to pay that fee.

        With specified exceptions, Health and Safety Code section 11372.7, subdivision

(a), requires defendants convicted of offenses listed in chapter 6 of division 10 of the

Health and Safety Code to pay a drug program fee. However, an exception to the

mandatory fee is the "ability to pay" aspect of Health and Safety Code section 11372.7,

subdivision (b), which provides: "The court shall determine whether or not the person

who is convicted of a violation of this chapter has the ability to pay a drug program fee.

If the court determines that the person has the ability to pay, the court may set the amount

to be paid and order the person to pay that sum to the county in a manner that the court

believes is reasonable and compatible with the person's financial ability. In its

determination of whether a person has the ability to pay, the court shall take into account

the amount of any fine imposed upon that person and any amount that person has been

ordered to pay in restitution. If the court determines that the person does not have the

ability to pay a drug program fee, the person shall not be required to pay a drug program

fee."

        The court imposed the fee without an express determination of Guerrero's ability

to pay that fee. However, he did not object below to this omission. The People assert his

failure to object results in forfeiture of any claim of error under the rationale of People v.

                                              11
McCullough (2013) 56 Cal.4th 589. In McCullough, the court held that imposition of a

"booking fee" under Government Code section 29550.2 requires the People to show the

defendant's ability to pay such fee, "[b]ut a defendant who does nothing to put at issue the

propriety of imposition of a booking fee forfeits the right to challenge the sufficiency of

the evidence to support imposition of the booking fee on appeal. . . ." (McCullough, at

p. 598.)

       Guerrero asserts McCullough is not controlling because McCullough recognized

Health and Safety Code section 11372.7 provided more procedural requirements or

guidelines for the ability-to-pay determination than did the statute authorizing imposition

of booking fees (People v. McCullough, supra, 56 Cal.4th at pp. 598-599), and Guerrero

argues the Supreme Court (by its grant of review in a number of cases involving the

forfeiture rule when fees are to be imposed) has implied that McCullough has left open

the application of the forfeiture rule to statutes other than imposition of a "booking fee"

under Government Code section 29550.2. However, in two of the cases in which review

was granted, the Supreme Court has subsequently filed opinions in which it adhered to

McCullough and concluded a challenge to the sufficiency of the evidence on the ability to

pay question is forfeited if not raised at trial. In People v. Trujillo (2015) 60 Cal.4th 850

(addressing probation supervision and presentence investigation fees imposed under

§ 1203.1b) and its companion case, People v. Aguilar (2015) 60 Cal.4th 862 (addressing

probation-related costs and an order for reimbursement of fees paid to appointed trial

counsel under §§ 1203.1b & 987.8, respectively), our Supreme Court adhered to

McCullough and concluded that a defendant forfeits his or her right to challenge on

                                             12
appeal the imposition of those costs if he or she did not interpose that objection at trial.

(Trujillo, at pp. 857-861; Aguilar, at pp. 866-870.)

       Although neither Trujillo nor Aguilar applied the forfeiture rule to the drug

program fee, we are unpersuaded by Guerrero's claim that an approach different from that

used in McCullough, Trujillo and Aguilar should be employed merely because the drug

program fee has procedural protections not found in the booking fee statute. That same

argument gained no traction in Aguilar where the court noted that "defendant here relies

on the specification in sections 1203.1b and 987.7 of certain procedural requirements not

contained in the booking fee statutes [citations] in an effort to distinguish our decision in

[McCullough], which held that challenges to the imposition of booking fees are forfeited

unless made at sentencing. For the reasons discussed in our opinion in [Trujillo], the

effort is unavailing." (People v. Aguilar, supra, 60 Cal.4th at p. 866.) We can perceive

no meaningful difference, at least for purposes of the forfeiture rule, between the statutes

considered in McCullough, Trujillo and Aguilar and the drug program fee at issue here.

We follow McCullough, Trujillo and Aguilar and conclude that, because Guerrero did not

object below to the "ability to pay" finding, he cannot interpose that claim on appeal.

       D. Challenges to the Other Fines Imposed

       Guerrero contends the restitution and parole revocation fines imposed on him at

sentencing must be set aside because the trial court erroneously believed it could not

impose the statutory minimum but instead was required to follow the formula set out in

section 1202.4, subdivision (b)(2), and it then erroneously applied that formula. The

People concede that, on this record, it appears the trial court may have misapplied the

                                              13
formulas it intended to use in calculating the restitution and parole revocation fines, and

therefore concede the proper remedy is to vacate these fines and remand the matter to

permit the trial court to exercise its discretion to recalculate these fines. We accept the

People's concession and therefore vacate these fines and remand the matter to the trial

court to permit it to exercise its discretion in calculating these fines.

                                        DISPOSITION

       The sentence is vacated and remanded with directions (1) to stay under section

654 the sentence imposed in San Diego superior court No. SCD249146 for the conviction

for misdemeanor vandalism (count three), and (2) to reconsider and reimpose the

appropriate restitution and parole revocation fines for defendant's convictions. In all

other respects, the judgment is affirmed.




                                                                            McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


IRION, J.




                                               14
