Filed 8/1/14 P. v. Crawford CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E059026

v.                                                                       (Super.Ct.No. FSB1300462)

SUNNY RAY CRAWFORD,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno,

Judge. Affirmed as modified.

         Gambale & Gambale and Jennifer A. Gambale, under appointment by the Court of

Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson,




                                                             1
Lynne McGinnis, and Michael Pulos, Deputy Attorneys General, for Plaintiff and

Respondent.

       Defendant Sunny Ray Crawford confronted his then-ex-girlfriend outside her

house. When she went inside the house, he climbed in through a window. Throughout

this incident, he alternated between saying he loved her and wanted to get back together

with her, on one hand, and threatening to beat her up, on the other hand.

       After a jury trial, defendant was found guilty of making a criminal threat. (Pen.

Code, § 422.) He was found not guilty of misdemeanor vandalism. (Pen. Code, § 594,

subd. (b)(2)(A).) The jury hung on a charge of burglary (Pen. Code, § 459), and the trial

court dismissed this charge on the People’s motion. Defendant was placed on probation

and ordered to pay the usual fees and fines.

       In this appeal, defendant contends:

       1. The trial court erred by failing to give a unanimity instruction with respect to

the charge of making a criminal threat.

       2. The trial erred by imposing an appointed counsel fee and a presentence

investigation and report fee because there was insufficient evidence that defendant had

the ability to pay.

       3. The trial court erred by making the payment of fees a condition of probation.

       The People concede that probation cannot be made conditional on the payment of

fees. We agree. Otherwise, we find no prejudicial error. Hence, we will modify the

judgment.



                                               2
                                              I

                               FACTUAL BACKGROUND

       Defendant and Maribel Herrera were in a romantic relationship, off and on, for

five years; for the last two of those years, Maribel lived with defendant and his mother.

       In December 2012, Herrera moved out, so she could focus on finishing

cosmetology school. She moved back into her family’s house in Muscoy.

       On February 3, 2013, around 4:00 p.m., defendant came to Herrera’s house. He

stood in the front yard, calling her name.

       Herrera went outside, but she took some pepper spray with her. Defendant “was

acting mad.” He said he wanted her back. He accused her of moving out of his house

because she was “seeing another man.” He said, “I feel like kicking your ass.” He also

said he was going to choke her. Herrera testified that she was not afraid and “didn’t feel

like [defendant] was going to hurt [her] at any time during that conversation.”

       After about 10 minutes, Herrera did not want to talk anymore, so she went back

inside. At this point, the front door was locked. Defendant kept calling her name. She

hid in a closet. She testified that she hid because she did not want to talk to defendant,

not because she was afraid.

       Defendant came in through Herrera’s bedroom window.1 He went through the

house looking for her. As Herrera described it, “He was saying I love you, where are

       1
              There was some evidence that defendant had broken the same window a
few days earlier, which was the basis of the misdemeanor vandalism charge.



                                              3
you, let’s talk. And he’ll change up and be like where the fuck are you. And say when I

find you I’m going to fuck you up. And then he’ll be like I love you, I’m sorry, please

come back.” He also said, “[I’m] going to choke you and beat your ass up.” At trial,

Herrera testified that at this point, she was angry, but she still was not afraid.

       Finally, defendant left the house (through the front door) and drove away.

Meanwhile, Herrera’s brother had called 911. When Herrera spoke to the police, she was

crying and upset. She told them that “she was afraid for her life, and if [they] didn’t

arrest him[,] [defendant] would come back and carry out his threats.”

       By the time of trial, defendant and Herrera had gotten back together. Herrera

dismissed her statement to the police as “over[-]dramatic” and “exaggerated.”

                                               II

                  FAILURE TO GIVE A UNANIMITY INSTRUCTION

       Defendant contends that the trial court erred by failing to give a unanimity

instruction with respect to the criminal threats charge.2

       “In a criminal case, . . . the jury must agree unanimously the defendant is guilty of

a specific crime. [Citation.] Therefore, cases have long held that when the evidence

suggests more than one discrete crime, either the prosecution must elect among the

crimes or the court must require the jury to agree on the same criminal act. [Citations.]”

(People v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence

       2
             The trial court did give a unanimity instruction, but it was expressly limited
to the misdemeanor vandalism charge.



                                               4
shows only a single discrete crime but leaves room for disagreement as to exactly how

that crime was committed or what the defendant’s precise role was, the jury need not

unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the

defendant is guilty. [Citation.]” (Ibid.)

        The first thing we must decide, then, is whether the evidence shows two (or more)

instances of the offense of making a criminal threat. Ordinarily, we would look first to

the words of the statute that defines the offense.

        This offense is committed by “willfully threaten[ing] to commit a crime which

will result in death or great bodily injury to another person, with the specific intent that

the statement . . . is to be taken as a threat . . . , which, on its face and under the

circumstances in which it is made, is so unequivocal, unconditional, immediate, and

specific as to convey to the person threatened, a gravity of purpose and an immediate

prospect of execution of the threat, and thereby causes that person reasonably to be in

sustained fear for his or her own safety or for his or her immediate family’s safety . . . .”

        This language, however, is somewhat ambiguous with respect to what constitutes

a single instance of the offense. Suppose, for example, the defendant texts the victim,

every five minutes for an hour, “I’m going to kill you and I’m going to kill your

daughter.” Do we count the number of separate threatening communications? Or the

number of crimes threatened? Or the number of times the victim is placed in sustained

fear?




                                                5
         We therefore turn to the case law on this issue. The leading case is People v.

Melhado (1998) 60 Cal.App.4th 1529. There the defendant failed to pay for repairs on

his car. (Id. at pp. 1532-1533.) The manager of the repair shop therefore put the

defendant’s car in storage. At 9:00 or 9:30 a.m., the defendant told the manager, “I’m

going to blow you away if you don’t bring my car back. I’m going home and I’m going

to bring a grenade.” (Id. at p. 1533.) After the defendant left, the manager called the

police. At 11 a.m., the defendant returned. In the presence of the manager and two other

employees, he pulled out a grenade and yelled, “I’m going to blow you away,” “I’m

going to blow up this place. If I don’t get this car by Monday, then I’m going to blow it

away.” (Ibid.)

         On appeal, the court held that the trial court erred by failing to give a unanimity

instruction because the jury could have found two separate offenses of making a criminal

threat. (People v. Melhado, supra, 60 Cal.App.4th at pp. 1534-1539.) It reasoned that, in

the 9:00 a.m. incident, all of the elements of the crime were satisfied. (Id. at pp. 1536-

1538.)

         Significantly, in Melhado, the People were arguing that the 9:00 a.m. incident did

not meet the statutory definition of the crime because one of the elements — i.e., that the

threat was so unequivocal, unconditional, immediate and specific as to convey an

immediate prospect of execution of the threat — was absent. (People v. Melhado, supra,

60 Cal.App.4th at pp. 1537-1538.) The court’s discussion therefore responded to this

contention.



                                                6
       The fact, however, that all the elements of a crime have been satisfied tells you

when the crime has commenced; it does not necessarily tell you when the crime has

ended. For example, a theft begins as soon as there has been a taking of personal

property belonging to another, but “the theft continues until the perpetrator has reached a

place of temporary safety with the property. [Citation.]” (People v. Gomez (2008) 43

Cal.4th 249, 254-255.) Implicitly but necessarily, Melhado concluded that the crime the

defendant commenced at 9:00 a.m. had ended before he commenced a separate crime at

11:00 a.m.

       The obvious basis for that conclusion in Melhado is that there, the defendant

parted with the victim and thus was not making any threats for an hour and a half. Here,

by contrast, defendant stayed with the victim and kept making threats. We also note that

all of defendant’s threats were of the same nature — to beat the victim up and to choke

her. Moreover, while there is some room for doubt about when the victim first started to

be afraid (of which more below), once she did, she remained in constant fear until

defendant left. We see no way to carve up this course of conduct into distinct crimes.

       Defendant claims that, when he first entered the house, he said he loved Herrera; it

was only when he could not find her that he got frustrated and started to threaten her

again. He points out that the jury hung on the burglary charge; he claims that at least one

juror must have questioned whether he entered the house with the intent to threaten. He

concludes that, because he lacked the intent to threaten Herrera when he first entered the




                                             7
house, “the threats made outside the home were separate and distinct from the threats

made inside the home.”

       The evidence, however, does not show any change of intent. When defendant was

outside, he cajoled and threatened alternately, and when he was inside, he continued to

cajole and threaten alternately. He pursued Herrera inside the house against her will; she

had gone in and locked the door, which was why he had to climb in through a window.

She had to hide in a closet in her own home to evade him. The fact that one juror may

have been unconvinced that defendant entered the house with the intent to threaten does

not change the evidence. (See People v. Miranda (2011) 192 Cal.App.4th 398, 405-406

[jury’s “not true” finding on personal firearm use allegation does not mean there was

insufficient evidence that defendant was shooter].) At most, for a few moments,

defendant was hopeful that he could catch more flies with honey than with vinegar. But

this does not mean he committed two separate offenses, any more than a kidnapper who

unsuccessfully tries to talk his victim into staying has committed two kidnappings.

       We recognize that People v. Salvato (1991) 234 Cal.App.3d 872 held that Penal

Code section 422 does not “‘ . . . contemplate[] a continuous course of conduct of a series

of acts over a period of time. [Citation.]’ [Citation.]” (Salvato, supra, at pp. 882-883.)

There, however, the defendant had threatened the victim as many as 16 times between

January and March 1988 and between February and April 1989. (Id. at pp. 876-877.)

We would agree that Penal Code section 422 cannot be stretched into encompassing that

as a single crime. Making a criminal threat, however, does necessarily consist of some



                                             8
series of acts over some period of time (even if it is only the utterance of several words

over several seconds). Salvato simply does not tell us where to draw the line on these

facts.

         In sum, the evidence showed only a single discrete instance of the crime of

making a criminal threat. On this evidence, if the jury had found defendant guilty on two

counts of making a criminal threat, we would have to reverse one of the convictions. We

therefore conclude that a unanimity instruction was not required.

         Separately and alternatively, however, even assuming the evidence showed two

discrete instances of the crime, the failure to give a unanimity instruction was harmless

under any standard. The evidence that Herrera was in fear when she was outside the

house was slightly weaker than when she was inside the house. She went outside

voluntarily; she stayed there talking to defendant for 10 minutes. Admittedly, she took

some pepper spray outside with her, but she did so even before defendant had made any

threats. By contrast, once she went inside the house, she manifested fear by hiding in the

closet.3 At trial, of course, she testified that she was not afraid at any point. However,

she was impeached with her statement to the police that “she was afraid for her life . . . .”

         Thus, a juror could rationally find that the threats inside the house constituted a

crime, but the threats outside the house did not; or that both sets of threats constituted a


         3
              Herrera’s brother testified that defendant did not say anything “threatful”
inside the house. However, he admitted that he was in the bathroom making a 911 call,
so he did not hear everything that defendant said.



                                                9
crime; or that neither set of threats constituted a crime. However, no rational juror could

have concluded that the threats outside the house did constitute a crime yet the threats

inside the house did not. Since the jurors found defendant guilty, we are convinced

beyond a reasonable doubt that they agreed unanimously that the threats inside the house

constituted a crime.

       Defendant argues that some of the threats were conditional. Thus, he argues, some

of the jurors could have found that the threats outside the home were too conditional to

constitute a crime, while other jurors could have found that the threats inside the home

were too conditional to constitute a crime. The problem with this argument is that at least

some of the threats, both outside and inside, were unconditional.

       For example, Herrera testified that, while outside the house, defendant said, “I feel

like kicking your ass”; he did not say he was definitely going to kick her ass. However,

she also testified that, outside the house, defendant said unconditionally that “he was

going to choke me.”

       Similarly, Herrera testified that when defendant threatened, inside the house, to

kick her ass, he prefaced that threat with the words, “if I find out you’re cheating[.]”

However, she also testified that, inside the house, he said unconditionally, “[I’m] going to

choke you and beat your ass up.”

       In sum, then, even assuming the jurors were reluctant to rely on defendant’s

arguably conditional threats, there was undisputed evidence that he made unconditional

threats, both inside and outside the house. The evidence of conditional threats therefore



                                             10
does not shake our conclusion that the jurors unanimously found a criminal threat inside

the house.

                                            III

                       THE IMPOSITION OF FEES AT SENTENCING

       Defendant raises two contentions regarding the fees that he was ordered to pay at

sentencing.

       A.     Additional Factual and Procedural Background.

       According to the probation report, defendant was 22 years old. He had been

educated through the 11th grade. He had never been employed; his only income was

$825 a month in Supplemental Security Income (SSI) benefits. He lived with his mother.

He had no debts.

       The probation report recommended the imposition of $500 as an appointed

counsel fee (Pen. Code, § 987.8, subd. (b)), $505 as a presentence investigation and

report fee (Pen. Code, § 1203.1b), $40 as a court security fee (Pen. Code, § 1465.8, subd.

(a)(1)), and $30 as a criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)). It also

recommended a finding that defendant had the ability to pay the first two of these fees.

Finally, it recommended that defendant be required to pay $55 a month toward all fees,

starting in 30 days.

       At sentencing, the trial court imposed each of these fees in the recommended

amount. However, it ordered defendant to pay $50 a month toward all fees, starting in 60




                                            11
days. The trial court also made it a condition of probation that defendant “comply with

any court-ordered payment schedule.” (Capitalization altered.)

       B.     Ability to Pay.

       Defendant contends that the trial court erred by imposing the appointed counsel

fee and the presentence investigation and report fee because there was insufficient

evidence that he had the ability to pay them.

       Preliminarily, the People argue that defendant forfeited this contention by failing

to raise it at the sentencing hearing. The question of whether a defendant forfeits the

insufficiency of the evidence of the ability to pay these fees by failing to raise it below is

difficult and unsettled; it is currently before the Supreme Court in People v. Aguilar

(2013) 162 Cal.Rptr.3d 246, review granted Nov. 26, 2013, S213571. Hence, we will

assume, without deciding, that defendant did not forfeit the issue in this case. Even if so,

however, there was sufficient evidence of ability to pay.

       “The court’s finding of the defendant’s present ability to pay . . . may be implied

. . . . [Citation.] But any finding of ability to pay must be supported by substantial

evidence. [Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398,

disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599.)

“‘ . . . “Substantial evidence includes circumstantial evidence and any reasonable

inferences drawn from that evidence. [Citation.]” [Citation.] We “‘“presume in support

of the judgment the existence of every fact the trier could reasonably deduce from the




                                              12
evidence.”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Lopez (2013) 56 Cal.4th

1028, 1069.)

       The trial court could reasonably find that a person who has income of $825 a

month, no housing expenses, and no debts can pay $50 a month toward fees. Defendant

argues that the probation report did not list his expenses. However, it did state that he

had no debts, he did not pay any child support, he was in good health, and he took no

medications; from the fact that he lived with his mother, the trial court could reasonably

infer that he had no housing expenses. If he had significant expenses not shown by the

probation report, he was free to introduce evidence of them at the sentencing hearing.

       Defendant also complains that there was no evidence about why he received SSI;

he argues that he may have been disabled and thus unable to work. All the trial court

needed to know, however, was the fact that he did receive SSI. Again, if any other

information was relevant, defendant was free to offer it.

       Defendant argues that “the procedural safeguards set forth in [Penal Code] section

1203.1b were not followed in the present case.” Penal Code section 1203.1b, subdivision

(a), as relevant here, provides that: “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 [presentence investigation and report] 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,



                                              13
in which the court shall make a determination of the defendant’s ability to pay and the

payment amount.”

       Here, defendant did appear before the probation officer. Moreover, the probation

officer did make a determination of defendant’s ability to pay. Defendant complains that

there is no evidence in the record that the probation officer ever informed him of his right

to a hearing. However, absent contrary evidence, we are entitled to presume that the

probation officer did his or her duty. (Evid. Code, § 664.)

       We therefore conclude that the trial court properly imposed both the appointed

counsel fee and the presentence investigation and report fee.

       C.     Making Payment of the Fees a Condition of Probation.

       Defendant contends that the trial court erred by making the payment of these fees

a condition of probation.

       The People concede that this was error. While it was appropriate to impose the

fees as a result of defendant’s criminal conviction, payment could not be made a

condition of probation. (People v. Hart (1998) 65 Cal.App.4th 902, 906-907.)

       As the People point out — and defendant does not dispute — the trial court was

required to make payment of the restitution fine a condition of probation. (Pen. Code,

§ 1202.4, subd. (m).) However, there is a separate probation term (No. 19) that requires

defendant to pay the restitution fine. Accordingly, we may safely delete the

(unnumbered) probation term that requires defendant to comply with any court-ordered

payment schedule.



                                            14
                                            IV

                                     DISPOSITION

      The probation conditions are modified as follows: The unnumbered probation

term that requires defendant to “comply with any court-ordered payment schedule”

(capitalization altered) is deleted. As thus modified, the judgment is affirmed. The clerk

of the superior court is directed to prepare an amended sentencing minute order.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RICHLI
                                                                                         J.

We concur:


McKINSTER
                       P. J.


MILLER
                          J.




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