Filed 4/9/14 P. v. Sheppard 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057396

v.                                                                       (Super.Ct.No. FVI1201602)

DERRICK DJWON SHEPPARD,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed in part and reversed in part with directions.

         James R. Bostwick, 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, Assistant Attorney General, Lise Jacobson and Michael T.

Murphy, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Derrick Djwon Sheppard appeals after he was convicted

of one count of petty theft with prior theft convictions and felony vandalism. He raises

issues related to sentencing: whether the court properly imposed a sentence on the

vandalism count, the propriety of the order to pay attorney fees, and the order for victim

restitution. We affirm in part and reverse in part with directions.

                        FACTS AND PROCEDURAL HISTORY

       On the evening of June 19, 2012, the victim, David Simpson, was visiting his

girlfriend at her home in Victorville. He parked his truck in the driveway while he was

inside the house. Sometime later that night, Simpson’s girlfriend noticed that the interior

light was on in the truck. Simpson went out to look. When he opened the door, he saw

that the stereo had been removed from the dashboard, and defendant was passed out,

asleep, in the passenger seat. Defendant had Simpson’s backpack on his lap.

       Simpson ran back to the house and told his girlfriend to call 911. Soon, three

sheriff’s deputies responded to the call. Deputies Ramirez and Ruiz approached the cab

of the truck from opposite sides. Deputy Ruiz, on the driver’s side, attempted to rouse

defendant by shouting at him, but defendant was not responsive. Deputy Ramirez, on the

passenger side of the truck, smelled a strong odor of alcohol, and believed that defendant

was intoxicated. Deputy Ramirez opened the passenger door and tried to pull defendant

from the truck. As Deputy Ramirez pulled defendant out of the truck, they fell together

on the side of the driveway onto the grass.




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       Defendant tried to crawl under the truck, and he kicked Deputy Ramirez twice in

the midsection. Deputy Ruiz used his taser, and Deputy Marshall struck defendant with

his knee. Eventually, the officers were able to gain control over defendant, and

handcuffed and arrested him.

       Deputy Ramirez found a pair of pliers on the front seat of the truck that did not

belong to Simpson. Simpson’s stereo and radar detector were in the backpack.

       As a result of these incidents, defendant was charged with one count of petty theft

with priors, one count of felony vandalism, and one count of resisting an officer. The

information also alleged that defendant had five prison term prior offenses.

       The court granted defendant’s request to bifurcate proceedings. The prosecutor

agreed to dismiss one of the five prior theft-related convictions, and defendant agreed to

admit the remaining four. Defendant also admitted, as to the same four convictions, that

they were prison term priors within Penal Code section 667.5, subdivision (b). The court

also permitted the prosecutor to amend count 2 to charge misdemeanor vandalism, rather

than felony vandalism.

       A jury found defendant guilty of the petty theft with priors offense, and

misdemeanor vandalism, but acquitted him on the charge of resisting an officer. The trial

court denied probation and sentenced defendant to the aggravated term of three years for

the petty theft with priors, plus a consecutive one-year term for each of the four prison

term priors. In addition, the court found that defendant had violated his probation in an




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older case, and imposed a consecutive one-year term on the older case. The total term

was, therefore, eight years imprisonment, to be served in local jail custody.

       At the oral pronouncement of judgment, the trial court apparently failed to impose

any sentence with respect to count 2. The clerk’s minutes reflect that the court sentenced

defendant to 365 days in the county jail on count 2, but the reporter’s transcript does not

show any such oral pronouncement.

       The court awarded defendant 258 days of credit (129 days actual, 129 days

conduct credit under Pen. Code, § 4019) for presentence time served. The court also

ordered defendant to pay $550 toward the cost of his court-appointed attorney, and

ordered that defendant pay a restitution fine of $1,800.

       Defendant filed a timely notice of appeal.

                                        ANALYSIS

       I. The Judgment Should Be Modified to Impose and Stay a Sentence on the

                           Misdemeanor Vandalism Conviction

       Defendant points out that, although the clerk’s minutes reflect that defendant was

sentenced to 365 days in jail for the misdemeanor vandalism offense, the oral record in

the reporter’s transcript does not show that the court actually pronounced the sentence on

count 2. Defendant urges that the failure to orally impose a sentence on the vandalism

conviction requires that the matter be remanded to the trial court for the purpose of

imposing a sentence on count 2. The People also ask for a limited remand for this

purpose.



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       In People v. Alford (2010) 180 Cal.App.4th 1463, the defendant requested that the

matter be remanded to the trial court for a new sentencing hearing, because the trial court

had mistakenly implemented Penal Code section 654 by declining to impose (i.e.,

“staying imposition” of) any sentence on a conviction, rather than imposing and then

staying that sentence. The appellate court denied the request to remand to have the trial

court impose the missing sentence: “[Remand for this purpose] would mean pulling

defendant out of his prison programming and busing him to [the trial court] for a new

sentencing hearing that will not change his actual prison time. The futility and expense

of such a course militates against it.” (Id. at p. 1473.) The appellate court imposed the

sentence that the trial court “undoubtedly . . . would have imposed” and stayed execution

of that sentence. (Ibid.) The appellate court noted that it was exercising its “authority to

modify the judgment” pursuant to Penal Code section 1260. (Ibid.)

       “Section 1260 provides: ‘The court may reverse, affirm, or modify a judgment or

order appealed from, or reduce the degree of the offense or attempted offense or the

punishment imposed, and may set aside, affirm, or modify any or all of the proceedings

subsequent to, or dependent upon, such judgment or order, and may, if proper, order a

new trial and may, if proper, remand the cause to the trial court for such further

proceedings as may be just under the circumstances.’ The power to order remand ‘for

such further proceedings as may be just under the circumstances,’ in our view, permits us

to not remand to secure the same goal, i.e., justice under the circumstances.” (People v.

Ledbetter (2014) 222 Cal.App.4th 896, 904 [166 Cal.Rptr.3d 448, 454].)



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       We likewise exercise our authority to modify the judgment, pursuant to Penal

Code section 1260, to impose the sentence that the trial court “undoubtedly . . . would

have imposed” (People v. Alford, supra, 180 Cal.App.4th 1463, 1473), i.e., a

misdemeanor jail term of 365 days.

       It is at this point that defendant interposes his primary contention: the sentence on

the vandalism count should be stayed under Penal Code section 654. He argues that, in

the circumstances of this case, the theft of the stereo from the truck by removing it from

the dashboard was the same act as constituted the foundation of the vandalism

conviction: damaging the truck in the course of removing (stealing) the stereo.

       The People object that, because the trial court failed to exercise its judicial

function in pronouncing the sentence, any ruling on the Penal Code section 654 issue is

premature and speculative. We disagree.

       As in People v. Alford, supra, 180 Cal.App.4th 1463, the trial court failed to

impose a sentence on a particular conviction. There can be no question, in either case,

that the unimposed sentence related to a count for which the sentence ought to be stayed

under Penal Code section 654. In Alford, the related counts were burglary and grand

theft. (People v. Alford, supra, at p. 1467.) Here, the related counts are the theft (with

priors) and misdemeanor vandalism. The theft of the stereo involved removing it from

the dashboard of the truck. The vandalism of the truck involved removing the stereo

from the dashboard. Each count is based on the same operative facts. “Whether a course

of criminal conduct is divisible and therefore gives rise to more than one act within the



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meaning of section 654 depends on the intent and objective of the actor. If all of the

offenses were incident to one objective, the defendant may be punished for any one of

such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d

11, 19.) Ordinarily, “Whether the acts of which a defendant has been convicted

constitute an indivisible course of conduct is a question of fact for the trial court,”

(People v. Kwok (1998) 63 Cal.App.4th 1236, 1252), but where the facts are undisputed,

an issue may be resolved as a matter of law. (See Moosa v. State Personnel Bd. (2002)

102 Cal.App.4th 1379, 1385 [“Where the facts are undisputed . . . the ultimate conclusion

to be drawn from them is a question of law subject to de novo review.”].) Here, on the

undisputed facts, defendant manifestly harbored but one objective in the course of

committing both offenses: he intended to take the stereo from the truck.

       Because both offenses resulted from a single, indivisible course of conduct, we

further modify the judgment to stay execution of the jail sentence on count 2, pursuant to

Penal Code section 654.

       II. The Evidence Was Insufficient to Support the Order for Reimbursement

                                      of Attorney Fees

       At sentencing, the trial court ordered defendant to pay $550 to the county in

reimbursement of the costs of his court-appointed attorney. Defendant contends that the

evidence in the record is insufficient to support this order, because there was no hearing

to determine defendant’s ability to pay for such reimbursement.




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          The People first respond that defendant had forfeited the issue by failing to object

below at the time the court made its order to reimburse the attorney costs. The People

rely for this proposition on People v. McCullough (2013) 56 Cal.4th 589. That case,

however, involved a booking fee, which is de minimis, and distinguishable with respect

to the procedural protections provided for a hearing on the issue of reimbursement of

attorney costs.

          “Parties may generally challenge the sufficiency of the evidence to support a

judgment for the first time on appeal because they ‘necessarily objected’ to the

sufficiency of the evidence by ‘contesting [it] at trial.’ [Citations.]” (People v.

McCullough, supra, 56 Cal.4th 589, 596.) This principle “may extend to court

dispositions other than judgments,” when the “claims subjected to appellate review have

arisen from contested hearings and have . . . involved findings on which judgment of the

court was predicated.” (Ibid., citing People v. Butler (2003) 31 Cal.4th 1119, 1126,

fn. 4.)

          The California Supreme Court contrasted the ability-to-pay determination with

respect to the booking fee with other statutes requiring a similar ability-to-pay

determination: “In contrast to the booking fee statutes, many of these other statutes

provide procedural requirements or guidelines for the ability-to-pay determination.

Certain fee payment statutes require defendants to be apprised of their right to a hearing

on ability to pay and afford them other procedural safeguards. (See, e.g., Pen. Code,

§§ 987.8, 1203.1b [payment of cost of probation supervision].) Additionally,



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Government Code section 27755 lists extensive ‘procedural rights’ that must attend ‘any

hearing required by law to determine a person’s ability to pay court-related costs.’ (Id.,

§ 27755, subd. (a); see Welf. & Inst. Code, § 903.45, subd. (b) [listing qualifying court-

related costs].)” (People v. McCullough, supra, 56 Cal.4th 589, 598.) The Legislature

imposed no such procedural protections or safeguards with respect to the booking fee

determination. (Id. at p. 599.)

       Penal Code section 987.8, subdivision (b), providing for reimbursement of

appointed attorney costs, is one of the provisions the California Supreme Court

specifically contrasted with the booking fee provision. Penal Code section 987.8 states in

part: “(b) In any case in which a defendant is provided legal assistance, either through

the public defender or private counsel appointed by the court, upon conclusion of the

criminal proceedings in the trial court, or upon the withdrawal of the public defender or

appointed private counsel, the court may, after notice and a hearing, make a

determination of the present ability of the defendant to pay all or a portion of the cost

thereof. . . .” Notice to the defendant and a hearing are required.1

       1  Here, defendant contends that the trial court imposed the attorney fee
reimbursement without complying with the procedural requirements. Defendant states:
“The court’s complete remarks on this matter are: ‘I’ll order the sheriff’s department to
collect from you $550 for court-appointed counsel fees.’” Defendant argues that he was
not given any notice that there would be a hearing on attorney fee costs. The People
respond that, because the probation report included a recommendation that defendant be
ordered to reimburse the county $550 for appointed attorney costs, defendant was placed
on sufficient notice that his ability to pay the attorney costs was in issue at the sentencing
hearing. People v. Phillips (1994) 25 Cal.App.4th 62 supports the People’s contention.
There, the court held that reference in the probation report to attorney fee reimbursement
was sufficient notice under Penal Code section 987.8 (id. at p. 74), and that a hearing on
                                                                   [footnote continued on next page]


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        Because the determination of ability to pay reimbursement for the costs of

appointed counsel requires the procedural protection of a contested hearing, with notice

and the ability to present witnesses, it is akin to other determinations where the defendant

was deemed to have “‘necessarily objected’ to the sufficiency of the evidence by

‘contesting [it] at trial.’” (People v. McCullough, supra, 56 Cal.4th 589, 596; People v.

Butler, supra, 31 Cal.4th 1119, 1126, fn. 4.). Defendant did not forfeit the right to raise

the issue on appeal by failing to object below.

        As to the merits of the claim, we agree with defendant that the evidence was

insufficient to find that he had the ability to pay the ordered amount to reimburse the

costs of his appointed attorney. Penal Code section 987.8, subdivision (g)(2), provides:

“(g) As used in this section: [¶] . . . [¶] (2) ‘Ability to pay’ means the overall

capability of the defendant to reimburse the costs, or a portion of the costs, of the legal

assistance provided to him or her, and shall include, but not be limited to, all of the

following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s

reasonably discernible future financial position. In no event shall the court consider a

period of more than six months from the date of the hearing for purposes of determining

the defendant’s reasonably discernible future financial position. Unless the court finds

unusual circumstances, a defendant sentenced to state prison shall be determined not to



[footnote continued from previous page]
ability to pay attorney fees may be held in conjunction with the sentencing hearing (id. at
pp. 75-76).



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have a reasonably discernible future financial ability to reimburse the costs of his or her

defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment

within a six-month period from the date of the hearing. [¶] (D) Any other factor or

factors which may bear upon the defendant’s financial capability to reimburse the county

for the costs of the legal assistance provided to the defendant.”

         Here, no evidence was presented at the hearing about any of these circumstances,

beyond what was mentioned in passing in the probation report.

         As to defendant’s present financial position, the probation report indicated that he

lived with his parents in a household with two cousins. He had a girlfriend and an infant

child. Defendant paid no support for the child. Defendant had debts consisting of

medical bills, and no assets. Defendant had only one semester of college, and he had

some carpentry and janitorial experience. Defendant “had been working part time, as

needed, as a janitor with a family member,” and had apparently done so for the past five

years.

         The People urge that this evidence could support a conclusion that defendant “was

supported in part by his parents and girlfriend, and that he had the present and future

ability to pay $550 toward the costs of his attorney.” To the contrary, the evidence was

insufficient to support a conclusion that defendant had any ability to pay reimbursement

of the costs of his attorney. For five years, he had at best been employed only part-time,

intermittently. He did not have the ability to support himself. He had debts and no




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assets. The evidence did not show that he had the present ability to contribute to the costs

of his appointed counsel.

       Defendant urges that, as to his future financial ability to pay, he should also

benefit from the presumption in Penal Code section 987.8, subdivision (g)(2)(B), that a

defendant sentenced to state prison shall be presumed not to have the future ability to pay

the costs of his or her attorney. The People respond that a recent case, People v. Prescott

(2013) 213 Cal.App.4th 1473, has held that the presumption applies, strictly by its terms,

only to defendants sentenced to state prison, and that an inmate sentenced to serve a

prison sentence in the county jail, under the Realignment Act, does not benefit from the

presumption. (Id. at pp. 1476-1478.)

       A court’s principal objective in interpreting a statute is to determine and give

effect to the underlying legislative intent. (Code Civ. Proc., § 1859.) “Intent is

determined foremost by the plain meaning of the statutory language. If the language is

clear and unambiguous, there is no need for judicial construction. When the language is

reasonably susceptible of more than one meaning, it is proper to examine a variety of

extrinsic aids in an effort to discern the intended meaning. We may consider, for

example, the statutory scheme, the apparent purposes underlying the statute and the

presence (or absence) of instructive legislative history. [Citation.]” (City of Brentwood

v. Central Valley Regional Water Quality Control Bd. (2004) 123 Cal.App.4th 714, 722.)

       Where the Prescott court found no ambiguity in the words “state prison,” in Penal

Code section 987.8, we find that the language is reasonably susceptible to more than one



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meaning. Penal Code section 987.8 has not been amended since 1989, well before the

Realignment Act of 2011. It was not possible, when Penal Code section 987.8 was

enacted, to serve a sentence of more than one year in a county jail. All such sentences

were served exclusively in the state prison. There was no such thing as a “prison”

sentence that could be served in local custody in a county jail. The advent of “county

prison” sentences as a result of the Realignment Act renders the reference to a “state

prison” sentence ambiguous, or susceptible to more than one reasonable interpretation.

Manifestly, the reason for the presumption is that confinement in the state prison for a

period of years necessarily impedes an inmate’s ability to earn. Confinement, in

whatever institution, for a period of years, necessarily has the same effect. It is more

consistent with the statutory purpose to afford the presumption to “county prison”

inmates who, but for the Realignment Act, would have served their sentences in a state

prison and who would have had the benefit of the presumption.

       In any case, there is no evidence in the record to show that defendant had any

future ability to pay, given his eight-year sentence.

       The order that defendant pay $550 toward reimbursement of his appointed counsel

is reversed.

III. The Clerk’s Minutes Should Be Corrected to Reflect that Defendant Was Ordered to

                   Pay a Restitution Fine, Not Direct Victim Restitution

       Defendant points out that the clerk’s minutes state that the trial court ordered

defendant to pay “restitution to victim” in the amount of $1,800, when in fact the court



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ordered defendant to pay a restitution fine of $1,800. No victim restitution was ordered.

Both parties ask that this court order the minutes to be corrected. We shall so direct in

the disposition.

                                       DISPOSITION

       We order the judgment modified to impose, and to stay, a jail sentence of 365 days

on count 2, the misdemeanor vandalism conviction. We further reverse the order that

defendant pay $550 to reimburse the costs of his appointed attorney, because such order

was not supported by substantial evidence of defendant’s ability to pay. Finally, we order

the clerk’s minutes be corrected to reflect that the trial court imposed a restitution fine of

$1,800; no order for direct victim restitution was made. With these modifications,

changes, and corrections, the judgment is otherwise affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 McKINSTER
                                                                                             J.
We concur:



HOLLENHORST
          Acting P. J.



KING
                           J.




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