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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
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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.
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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.
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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.
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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?
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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.
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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
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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
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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.
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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
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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
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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
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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,
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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.
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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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People v. Crawford CA4/2
Combined Opinion