People v. Fain CA3

Filed 1/13/16 P. v. Fain CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----

THE PEOPLE, C075572

Plaintiff and Respondent, (Super. Ct. No. 62113045)

v.

MARK DAVID FAIN,

Defendant and Appellant.

A jury found defendant Mark David Fain guilty of brandishing a firearm in the
presence of a peace officer (Pen. Code,1 § 417, subd. (c); count 1), two counts of
forcefully resisting or deterring an officer in the performance of his duties (§ 69; counts 2
& 3), and three counts of misdemeanor resisting, delaying, or obstructing an officer
(§ 148, subd. (a)(1); counts 4, 5, & 6). The trial court suspended imposition of sentence

1 Further undesignated statutory references are to the Penal Code.

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and placed defendant on five years’ formal probation, on the condition he serve 365 days
in custody.2 The trial court also imposed various fines, fees, and penalties totaling
$3,303.
Defendant appeals, contending there is insufficient evidence to support his
convictions for brandishing (count 1) and resisting, delaying, or obstructing an officer
(counts 4, 5, & 6). He also asserts that the trial court erred in ordering him to pay various
fines, fees, and penalties as a condition to his probation, failing to orally pronounce the
fines, fees, and penalties that were imposed, and imposing certain fees without a proper
determination of his ability to pay. He further claims that his trial counsel was ineffective
in failing to raise these alleged sentencing errors at trial.
We shall remand this matter to the trial court with directions to amend the order
granting probation and judgment for monetary penalties to state the statutory bases for
each of the fines, fees, and penalties imposed. As modified, the order granting probation
and judgment for monetary penalties is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On Easter Sunday, April 8, 2012, at approximately 6:30 p.m., Roseville Police
Officer Greg Lieberman responded to a residential noise complaint at 921 Main Street.
When he arrived, he could hear loud music. He spoke to defendant, who identified
himself as “the responsible party of the residence,” and asked him to turn down the
music. Defendant agreed to turn down the music, and Lieberman left.
At approximately 8:00 p.m. that same night, Lieberman received a second noise
complaint concerning the same residence and responded along with Roseville Police
Officer Gary Cole. When Lieberman arrived, he heard very loud music and people
shouting obscenities. He again spoke to defendant and asked him to turn the music down

2 The trial court ordered that defendant serve 180 days in actual custody, and that
thereafter, he may apply for some form of alternative sentencing.

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and to stop yelling. Lieberman also asked defendant to sign a warning advising him that
he could be fined if officers were required to respond a third time. Defendant was
cooperative and signed the document. Defendant appeared to have been drinking.
Defendant refused to step outside of his house, explaining that he was afraid the officers
would “get” him for “drunk in public.” He also repeatedly referred the neighbors who
had complained about the noise as “dyke bitches.”
At approximately 9:30 p.m. that same night, Lieberman received a third call
advising him that two different noise complaints had been received concerning the same
residence. Lieberman met Cole and Roseville Police Officer Scott Christian on the street.
Lieberman asked Christian to accompany him and Cole on the call after Cole told him
that he had previously dealings with defendant and that it would be in their “best
interests” to have additional officers present. All three officers were in uniform.
Christian knocked on the door, while Lieberman stood off to the side, and Cole stood at
the base of the steps leading up to the front porch. Defendant answered the door, and
Lieberman asked him to step outside and sign a citation. Defendant did not say anything
and had a blank stare on his face. He placed his right hand into the right front pocket of
his shorts. He appeared to be “manipulating something in his pocket,” and Christian was
afraid he had a weapon. Christian ordered defendant not to “grab[] stuff” and repeatedly
asked him what he was grabbing. Defendant ignored Christian’s order, failed to respond
to his question, and continued to manipulate the object in his pocket. Afraid for his
safety, Christian reached across defendant’s body and attempted to grab the outside of
defendant’s pocket to feel what was inside. As he did so, he observed defendant’s right
hand coming out of the pocket along with a brown strap with a snap on it, which
Christian recognized as a safety strap to a holster. As defendant continued to pull his
hand out of the pocket, Christian and Lieberman could see that defendant had a small
semiautomatic handgun in his hand. Christian called out “gun” to alert the other officers
that defendant had a gun. Christian grabbed the gun with his right hand and grabbed

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defendant’s jacket sleeve with his left hand and pulled defendant out the door and onto
the ground. As defendant came out the door, his “arms kind of flailed,” and the gun was
knocked from Christian’s hand, and he lost sight of it.
When Lieberman saw that defendant had a gun in his hand, he grabbed at some
part of defendant’s clothing and “pulled him out [of the house] so we could get him on
the ground.” As Lieberman did so, he lost his balance and “ended up behind the
window.” At that point, Cole took his place and Cole and Christian tried to control
defendant’s arms. Defendant resisted Christian’s attempt to handcuff him. “[H]is arms
were pulling away and [he was] not cooperating.” Christian held defendant’s left hand
while Cole grabbed defendant’s right hand, which was up near his head, and pulled it
down and behind his back so Christian could handcuff him. Defendant struggled with
Cole as he attempted to do so.
After defendant was handcuffed, officers rolled him onto his side and found the
gun near the doormat on the porch. It was loaded, a bullet was in the chamber, a
magazine was in the gun, and the magazine was loaded with bullets.
Defendant testified in his own defense at trial. He was asleep in the front room
when officers returned to his house a third time. He heard someone banging on the front
door and answered it. When he did, “they” asked him to come outside and sign
something. When he “went to pull his hand out of [his] pocket,” someone grabbed him
by the hair and threw him to the ground. He recalled one of the officers telling him not to
grab something, but he did not know what the officer was talking about. He had his hand
in his pocket along with a television remote control, but he did not think he was grabbing
anything. He is right handed, so he could have been taking his right hand out of his
pocket to sign the citation. He did not have a gun or a holster in his pocket. The gun that
officers recovered at the scene had been sitting above the doorway on a windowsill. That
was the last place defendant had seen his gun. He never saw it after the police arrived the

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third time. He denied resisting the officers’ efforts to handcuff him or doing anything
hostile or aggressive while he was on the ground.
DISCUSSION

I
Defendant’s Conviction for Brandishing is Supported by Substantial Evidence
Defendant first contends that “the evidence that [he] drew or exhibited a firearm in
the presence of a peace officer in a rude or angry manner was insufficient as a matter of
law.” We disagree.
When considering a challenge to the sufficiency of the evidence supporting a
conviction, we must “ ‘review the whole record in the light most favorable to the
judgment to determine whether it contains substantial evidence -- i.e., evidence that is
credible and of solid value -- from which a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.’ ” (People v. Jennings (1991) 53 Cal.3d
334, 364.) Even where the evidence of guilt is primarily circumstantial, the standard of
appellate review is the same. (People v. Holt (1997) 15 Cal.4th 619, 668 [“ ‘ “ ‘If the
circumstances reasonably justify the [jury’s] findings, the opinion of the reviewing court
that the circumstances might also be reasonably reconciled with a contrary finding does
not warrant a reversal of the judgment.’ ” ’ ”].) To succeed under a substantial evidence
review, the defendant must establish that no rational jury could have concluded as it
did—it does not matter that “the evidence could reasonably be reconciled with a finding
of innocence or a lesser degree of crime . . . .” (People v. Hill (1998) 17 Cal.4th 800,
849; see People v. Hovarter (2008) 44 Cal.4th 983, 1015 [“ ‘ “An appellate court must
accept logical inferences that the jury might have drawn from the evidence even if the
court would have concluded otherwise.” ’ ”].)
Section 417, subdivision (c) provides: “Every person who, in the immediate
presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in
a rude, angry, or threatening manner, and who knows, or reasonably should know, by the

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officer’s uniformed appearance or other action of identification by the officer, that he or
she is a peace officer engaged in the performance of his or her duties, and that peace
officer is engaged in the performance of his or her duties, shall be punished . . . .” Intent
to harm is not an element of the offense. (People v. Hall (2000) 83 Cal.App.4th 1084,
1091-1092.) “Instead, it is a general intent crime that does not require an intent beyond
that to do the proscribed act. [Citations.] ‘When the evidence shows the weapon was
exhibited in a rude, angry or threatening manner, the offense is complete.’ [Citations.]”
(Id. at p. 1092.)
Defendant argues that “in the present case . . . there was no evidence whatsoever
that when [he] stood in the doorway of his home and began to pull a handgun out of his
pants pocket, he was acting in a rude, angry or threatening manner.” Not so.
The evidence adduced a trial showed that when defendant answered the door and
Lieberman asked him to step outside and sign a citation, he said nothing, had a blank
stare on his face, placed his hand in his pocket, and began to manipulate something.
Christian ordered defendant not to “grab[] stuff” and repeatedly asked him what he was
grabbing. Defendant ignored Christian’s order, failed to respond to his question,
continued to manipulate the object in his pocket, and then began to pull a handgun out of
his pocket. In the face of defendant’s silence and his failure to do as instructed, the jury
reasonably could construe defendant’s removal of the handgun as threatening.
Accordingly, defendant’s challenge to the sufficiency of the evidence supporting the
brandishing offense (count 1) fails.

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 II
Defendant’s Convictions for Delaying, Resisting, or Obstructing a Peace Officer in the
Discharge of His Duties Are Supported by Substantial Evidence
Defendant next contends that the evidence he delayed, resisted, or obstructed three
different peace officers in the discharge of their duties was insufficient as a matter of law.
Again, we disagree.3
Defendant was convicted of delaying, resisting, or obstructing Officers Liberman,
Cole, and Christian in the discharge of their duties (counts 4, 5, & 6). Section 148,
subdivision (a)(1) provides: “Every person who willfully resists, delays, or obstructs any
. . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office
or employment, when no other punishment is prescribed, shall be punished . . . .” “A
defendant can be convicted under section 148 for each peace officer he obstructs, even if
he engages in only one act of obstruction.” (People v. Hairston (2009) 174 Cal.App.4th
231, 238.)
“Penal Code section 148 is not limited to nonverbal conduct involving flight or
forcible interference with an officer’s activities. No decision has interpreted the statute to
apply only to physical acts, and the statutory language does not suggest such a
limitation.” (People v. Quiroga (1993) 16 Cal.App.4th 961, 968.) Although section 148
is most commonly applied to physical acts, such as fleeing from a proper investigatory
detention by a police officer, brandishing a gun at an officer, passively resisting an arrest
by going limp, or struggling physically with an officer making an arrest or attempting to
break up a fight, it has also been applied to cases involving a combination of verbal and

3 While not raised by the parties, we pause to note that section 148, subdivision (a)(1) is
not a lesser included offense of section 69 (forcefully resisting or deterring an officer in
the performance of his duties) under either the accusatory pleading or statutory elements
test. (People v. Smith (2013) 57 Cal.4th 232, 241.) Thus, the rule prohibiting convictions
on both a greater offense and a lesser included offense is not implicated here. (See
People v. Sanders (2012) 55 Cal.4th 731, 736.)

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physical interference with an officer’s performance of his duties. (Quiroga , at pp. 967-
968.) “In People v. Martensen (1926) 76 Cal.App. 763, the defendant was stopped for
driving at an excessive speed and refused to exhibit his driver's license or to disclose his
name. He then started his motor with the apparent intention of driving away. When the
officer stepped on the running board and reached into the car to turn the ignition switch,
the defendant pushed the officer off the running board. In People v. Randolph (1957)
147 Cal.App.2d Supp. 836, the defendant refused to produce his driver’s license and then
‘forcibly resisted the attempts of the officers to take him into physical custody.’ (Id. at p.
839.)” (Id. at p. 968.)
Here, there is ample evidence defendant delayed, resisted, or obstructed
Lieberman, Christian, and Cole in the discharge of their duties. He failed to come outside
and sign the citation when requested to do so by Lieberman, brandished a handgun at all
three officers, and resisted Christian and Cole’s efforts to handcuff him. Accordingly,
defendant’s challenge to the sufficiency of the evidence supporting the misdemeanor
resisting, delaying, or obstructing an officer offenses (counts 4, 5, & 6) fails.

III
The Fines, Fees, and Penalties Imposed Are Not Conditions of Defendant’s Probation
Defendant contends the trial court improperly imposed fines, fees, and penalties
collateral to his crime as conditions of his probation and argues the order granting
probation and judgment for monetary penalties must be modified to clarify that payment
of those fines, fees, and penalties is not a condition of probation, but rather an order of
the court entered at judgment. The People do not dispute that fines and fees that are
collateral to a defendant’s crime may not be made conditions of probation in the absence
of a statutory exception. (People v. Kim (2011) 193 Cal.App.4th 836, 842-843.) The
People disagree, however, with defendant’s claim that the fines, fees, and penalties
imposed in this case were ordered as conditions to defendant’s probation. The People are
correct.

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 The recommendation portion of the probation report, which was received and
reviewed by the parties prior to sentencing, is broken into separate sections, including a
section entitled “TERMS AND CONDITIONS.” The recommended fines, fees, and
penalties are not among the 20 terms and conditions listed. Rather, they are set forth later
as separate recommendations. The order granting probation and judgment for monetary
penalties likewise contains separate sections setting forth the terms and conditions of
defendant’s probation and the fines, fees, and penalties imposed. Having reviewed the
record, it is clear to us that none of the fines, fees, or penalties imposed in this case are
conditions of defendant’s probation. Accordingly, the order granting probation and
judgment for monetary penalties need not be modified.

IV
The Order Granting Probation and Judgment for Monetary Penalties Must Be Amended
to Include the Statutory Bases for All the Fines, Fees, and Penalties Imposed
Defendant next contends that “[i]n the absence of the court’s oral pronouncement,
the imposition of fees in the clerk’s record was error,” and therefore “these charges must
be stricken.” As we shall explain, the matter must be remanded to the trial court so that it
may specify the statutory bases for the imposition of all fines, fees, and penalties
imposed.
At sentencing, the trial court ordered defendant to “also pay all fees and fines
stated on page 3, which are all set, I notice, at the minimums.” The trial court’s reference
to page 3 is to the order granting probation and judgment for monetary penalties, which
lists each of the 15 fines, fees, and penalties actually imposed, and the statutory bases for
some, but not all, of the same. As relevant here, the trial court imposed a $200 “base
fine,” a $200 “state penalty assessment,” a $140 “county penalty assessment,” a $100
“facility penalty assessment,” a $350 “pre-sentence report” fee, a $25 “substance abuse
testing” fee, a $1,200 “probation supervision fee,” a $150 “booking fee,” and a $118

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“incarceration fee.” The statutory bases for these fees, fines, and penalties are not listed
in the order granting probation and judgment for monetary penalties.
The trial court must provide at sentencing a “detailed recitation of all the fees,
fines and penalties on the record,” including their amounts and statutory bases. (People
v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) All of these fines, fees, and
penalties, including their amounts and statutory bases, must be set forth in the abstract of
judgment or probation order. (Ibid.; People v. Eddards (2008) 162 Cal.App.4th 712,
717-718 (Eddards).) “If the abstract does not specify the amount of each fine, the
Department of Corrections cannot fulfill its statutory duty to collect and forward
deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum,
the inclusion of all fines and fees in the abstract may assist state and local agencies in
their collection efforts. [Citation.]” (High, at p. 1200.)
In this case, unlike in High, imposition of sentence was suspended and the trial
court did not generate an abstract of judgment. However, this court has held that a
probation order must also state the amounts and statutory bases of fines and fees
imposed. (Eddards, supra, 162 Cal.App.4th at p. 718.) Thus, as the trial court failed to
identify the statutory bases for each of the fines, fees, and penalties imposed, we will
remand the matter to the trial court with directions to modify the order granting probation
and judgment for monetary penalties by listing the statutory bases for each of the fines,
fees, and penalties imposed.
The People contend that this claim was forfeited by defendant’s failure to object
below. We disagree. The trial court’s duty to articulate all fines, fees, and penalties in
the abstract of judgment or probation order is intended not only to benefit the defendant,
but also to assist state and local agencies in their collection obligations. (High, supra,
119 Cal.App.4th at p. 1200; Eddards, supra, 162 Cal.App.4th at p. 718.) The trial court’s
duty to state and local agencies cannot be waived by the defendant.

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 V
Defendant Forfeited His Claim That the Trial Court Failed to Properly Determine That
Had the Ability to Pay Certain Fees
Finally, defendant contends that the presentence report, probation supervision,
booking, and incarceration fees must be stricken because the trial court did not make “a
proper determination of [his] ability to pay.” More particularly, defendant argues the trial
court failed to conduct a hearing to determine defendant’s ability to pay, and thus, there is
no evidence to support a finding that defendant had the ability to pay. As we shall
explain, defendant forfeited his claim by failing to object below.
The trial court ordered defendant to “pay all the fees and fines stated on page 3 [of
the proposed order granting probation and judgment for monetary penalties], which are
all set, I notice, at the minimums. And you are still a healthy man working, so I find you
do have the ability to pay . . . .” The probation report recommended defendant be ordered
to pay the challenged fees, and the proposed order granting probation and judgment for
monetary sanctions included them. At no point, however, did defendant object to the
imposition of the challenged fees, the process by which he was ordered to pay them, or
his ability to pay them. By failing to do so, he forfeited his claim that the trial court
failed to properly determine that he had the ability to pay the challenged fees. (People v.
Aguilar (2015) 60 Cal.4th 862, 866-867; People v. Trujillo (2015) 60 Cal.4th 850, 858-
859; People v. McCullough (2013) 56 Cal.4th 589, 591.)

VI
Defendant’s Trial Counsel Was Not Ineffective
Lastly, defendant contends that he was “denied the effective assistance of counsel
at the time judgment was imposed” based on counsel’s failure to object to the trial court’s
(1) improper imposition of fines, fees, and penalties as conditions to his probation, (2)
failure to orally pronounce the fines, fees, and penalties it imposed, and (3) failure to
make a proper determination of his ability to pay certain fees. We are not persuaded.

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 To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel’s representation fell below an objective standard of
reasonableness, and, but for counsel’s errors, there is a reasonable probability that the
result of the proceeding would have been different. (Strickland v. Washington (1984)
466 U.S. 668, 687 [80 L.Ed.2d 674]; People v. Berryman (1993) 6 Cal.4th 1048, 1081
(Berryman), overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn.
1.) If a defendant fails to establish either component, the ineffective assistance claim
fails and we need not address the other component. (Strickland, at p. 697; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)
In reviewing a claim of ineffective assistance, we accord great deference to trial
counsel’s reasonable tactical decisions (People v. Weaver (2001) 26 Cal.4th 876, 925;
People v. Freeman (1994) 8 Cal.4th 450, 484) and reverse “ ‘only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.’ ” (People v. Frye (1998) 18 Cal.4th 894, 980, disapproved on other grounds
by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “An attorney may choose not to
object for many reasons, and the failure to object rarely establishes ineffectiveness of
counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)
As discussed above, the fines, fees, and penalties imposed are not conditions of
defendant’s probation. Thus, counsel was not ineffective in failing to object to the fines,
fees, and penalties on that ground. (People v. Samaniego (2009) 172 Cal.App.4th 1148,
1170 [“Failure to make meritless objections cannot be the basis of an ineffective
assistance of counsel claim.”].)
While the trial court was required to set forth in the statutory bases for each of the
fines, fees, and penalties imposed in the order granting probation and judgment of
monetary penalties, the proper remedy is remand to allow the trial court to list the
statutory bases for all the fines, fees, and penalties imposed. Accordingly, defendant was
not prejudiced by counsel’s failure to object to the trial court’s failure to list the statutory

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bases for each of the fines, fees, and penalties imposed, and thus, counsel was not
ineffective in failing to object. (Berryman, supra, 6 Cal.4th at p. 1081.)
Finally, we found defendant forfeited his claim that the trial court failed to
properly determine his ability to pay certain fees by failure to object below. Defendant
argues his trial counsel was ineffective in failure to object. The record is silent as to why
counsel did not object. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [a claim of
ineffective assistance of counsel must be rejected if “ ‘ “the record on appeal sheds no
light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel
was asked for an explanation and failed to provide one, or unless there simply could be
no satisfactory explanation” ’ ”].) Contrary to defendant’s assertion, the record does not
affirmatively disclose counsel had no rational tactical purpose for not objecting. The
probation report recommended defendant be placed on 5 years’ formal probation on the
condition he serve a disciplinary sentence of 365 days in the Placer County Jail less credit
for 68 days. At the sentencing hearing, defendant’s trial counsel argued in favor of
probation, as recommended in the probation report. In doing so, he asked the court to
“take into serious consideration the fact that [defendant] is . . . self-employed as an air
conditioning service technician [and] . . . provide[s] financial support for his family. That
is reflected in the probation officer’s report that it’s going to severely impact his family if
they are denied his income.” One obvious reason for not arguing defendant lacked the
ability to pay the challenged fees is that the argument conflicted with his primary
argument in favor of probation.
Defendant has not established that his counsel’s failure to object any of the alleged
sentencing errors constituted ineffective assistance.
DISPOSITION
The matter is remanded to the superior court, which is directed to amend the order
granting probation and judgment for monetary penalties, filed January 6, 2014, to state

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the statutory basis for each fine, fee, and penalty imposed. As modified, the order
granting probation and judgment for monetary penalties is affirmed.

/s/
Blease, J.

We concur:

/s/
Raye, P. J.

/s/
Hull, J.

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