People v. Greenberg CA3

Filed 2/4/15 P. v. Greenberg 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NOT TO BE PUBLISHED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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent, C071462
v. (Super. Ct. No. P08CRF0316)
MORRIS ANTHONY GREENBERG,
Defendant and Appellant.
Defendant Morris Anthony Greenberg, a former police officer, shot and killed a
man dating his estranged wife. Moments later, he shot himself under the chin in an
apparent suicide attempt. A jury found him guilty of first degree murder and found true
certain firearm enhancement allegations. The trial court sentenced him to 50 years to life
1
in prison and ordered him to pay various fines, fees and surcharges, including part of the
cost of his legal defense.
Defendant now contends (1) the trial court erred in barring testimony from two
expert witnesses, one who would have testified about suicide ideation among police
officers and another who would have testified about firearms training for police officers;
(2) in determining defendant’s ability to pay certain fees, the trial court impermissibly
considered his public employee disability retirement pay; (3) the trial court improperly
ordered defendant to pay restitution with cash seized from his apartment, because there
was no evidence that he had any income other than disability retirement; and (4) a
$10,000 “general fund fine” was unauthorized.
We conclude (1) the trial court did not abuse its discretion in barring the expert
witness testimony; (2) there is substantial evidence to support a finding that defendant
had the ability to pay the fees; (3) defendant did not establish that the cash seized from
his apartment came from exempt funds; and (4) we will strike the $10,000 general fund
fine. Our review also identified a clerical error in the abstract of judgment.
We will modify the judgment, affirm the judgment as modified, and order the trial
court to prepare an amended and corrected abstract of judgment.
BACKGROUND
Defendant began employment as a police officer in 1996. He married the
following year, the couple had a daughter two years later, and they bought a home in El
Dorado County in 2006. Defendant went on disability retirement in 2007 due to neck
injuries.
By July of 2008, the family home was in foreclosure and listed for sale. The
couple separated in May and defendant’s wife began dating the victim. Defendant
testified that he went to the shop where the victim worked and told him to stop seeing his
wife because he wanted to work on the marriage. Defendant also warned his wife to stop
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seeing the victim, threatening that if she did not, she would be sorry for the rest of her
life.
Over the summer the couple moved items from the home to their separate
residences. One morning a friend helped defendant move a trailer away from the house;
defendant’s wife said she would be moving items with friends that day and defendant did
not want her using the trailer. Defendant had breakfast with his daughter, took some
things from the house to his apartment, and then returned to the house.
When defendant arrived at the house at about 1:40 p.m., his wife was there with
the victim and the victim’s sister and brother-in-law. Defendant was angry that they had
loaded a refrigerator and other items onto a trailer parked in front of the house.
Defendant saw the victim apparently disassembling a roof in the horse corral area and
told him, “[G]et the fuck off the property.” Defendant then walked into the house, used
the “command presence” he had learned as a police officer, and insisted that the others
“get the fuck out of the house.” His wife protested that she needed help to move her
things, but the visitors went outside and prepared to leave as defendant directed.
As the victim’s sister walked outside, she saw the victim walk from the horse
corral toward the passenger side of her truck. There were no firearms in the truck and the
victim was not carrying a gun. The victim’s brother-in-law began to get into the driver’s
seat of the truck beside the victim, but he remembered his tools and returned to the house
to fetch them. At the same time, an argument between defendant and his wife escalated
and the wife asked the victim’s sister to walk their daughter back into the house. The
child was crying and saying she “didn’t want daddy to do this,” and “didn’t want
anybody to go to jail.” The victim was quietly sitting in his sister’s truck. Defendant
angrily repeated his order for the victim to leave; the victim said he was just waiting for
his brother-in-law.
As defendant and his wife stood near the trailer attached to her truck, he accused
her of taking the property in the trailer without his permission and threatened to call the
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sheriff; his wife replied, “[G]o ahead and do it.” She asked him, “Why do you have to
make this so ugly?” Striding toward his parked Mercedes, defendant said he would show
her ugly. Defendant’s car was parked about 100 feet from the house. When he got to the
car, he reached into the passenger side, bending toward the dashboard. The victim’s
brother-in-law testified that less than a minute passed from when he heard the wife telling
defendant to go ahead and call the sheriff until he heard the sound of gunfire.
Defendant said his gun was already in his waistband; he said he retrieved a cell
phone from his car but could not get a signal. When defendant returned from his car, his
wife had walked from the trailer to where the victim was sitting. She said defendant had
his hand down and his arm behind his leg as he approached. He stepped between her and
the victim inside the open truck door, lifted his arm and shot the victim twice in the chest.
His wife dropped to the ground begging not to be hurt. Defendant stepped back and shot
the victim in the head. The victim died from multiple gunshot wounds.
Defendant claimed self-defense, imperfect self-defense and/or sudden argument or
heat of passion. Although the victim was wearing shorts and a tank top and defendant
observed him walking to the truck with nothing in his hands and no bulge from a
concealed weapon, defendant said he knew the victim sometimes carried a concealed
weapon. Defendant claimed that when he was two or three feet away and inside the open
truck door, he saw the victim reach under the seat and retrieve a black gun. Defendant
pulled his gun from his waistband and started firing. He said he was scared and twice
warned the victim to show his hands. When he looked for a gun as the victim slumped
down on his left side, there was no gun.
Defendant then shot himself. His wife ran into the house, grabbed her daughter,
and fled out the back door to call 911 from a neighbor’s house.
A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a) --
count I) and found true various firearm enhancement allegations (Pen. Code, §§ 12022.5,
subd. (a), 12022.53, subds. (b), (c), (d)). The trial court sentenced him to 25 years to life
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in prison for murder and 25 years to life for one of the firearm enhancements, staying
sentence on the other enhancements. The trial court also awarded 1,406 days of
presentence credit and ordered defendant to pay various fines and fees, but scheduled
another hearing to discuss restitution, defendant’s income, and his responsibility for
additional costs.
At the subsequent hearing, the trial court ordered defendant to pay restitution to
various individuals and to reimburse the California Victim Compensation and
Government Claims Board. In addition, over defendant’s objection, the trial court
ordered that $7,000 in cash seized from defendant’s apartment be applied toward
restitution.
The trial court also ordered defendant to repay part of the cost of his legal defense.
Defendant objected that his disability retirement benefits are exempt and shielded under
Code of Civil Procedure section 704.110. The trial court concluded: “[I]f there is a
shield, the law is what the law is, but I’m going to assess those amounts and make a
finding that you have the ability to pay those sums out of your retirement and out of your
prison earnings.”
Additional facts are set forth in the discussion as relevant to the contentions on
appeal.
DISCUSSION
I
Defendant contends the trial court erred in barring testimony from two expert
witnesses, one who would have testified about suicide ideation among police officers and
another who would have testified about firearms training for police officers.
A
We begin with the expert psychologist who would have testified regarding suicidal
ideation among police officers. Defendant wanted to offer the testimony to negate a
conclusion that his attempted suicide evidenced consciousness of guilt. The prosecutor
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suggested in closing that defendant’s suicide attempt may have been fueled by guilt.
Defendant claims the psychologist would have corroborated defendant’s testimony that
he tried to commit suicide not because of guilt but because of a sense of moral
responsibility and because of other stressors.
The prosecution moved in limine to exclude the psychologist’s testimony because
the psychologist’s expertise involved evaluating police officers for fitness following
onduty shootings. The trial court subsequently held a hearing without the jury to evaluate
the proposed testimony. (Evid. Code, § 402.) The psychologist would have testified that
a person can become suicidal after shooting someone, not necessarily as an
acknowledgment of wrongdoing but from a feeling that they had responsibility or might
have done something to prevent the tragedy. The psychologist admitted he would be
speculating about attempted suicide by former police officers and he had not evaluated
defendant.
The trial court noted defendant did not shoot anyone in the line of duty and the
expert did not claim special knowledge about shootings by former officers or by persons
engaged in domestic disputes. The trial court excluded the expert testimony as not
relevant and potentially confusing to the jury.
To be admissible, expert opinion testimony must assist the trier of fact because of
its relationship to a subject “beyond common experience.” (Evid. Code, § 801,
subd. (a).) Under this rule, a “trial court acts as a gatekeeper to exclude speculative or
irrelevant expert opinion.” (Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 770.) An expert opinion is also properly excluded if the trial court
finds “ ‘too great an analytical gap’ ” between the anticipated opinion and the data on
which the opinion is based. (Id. at p. 771 [applying Evid. Code, § 802].) On appeal, a
trial court’s decision to admit or not to admit expert testimony is reviewed for abuse of
discretion, that is, for proof that the trial court’s discretion was exercised in an arbitrary,
6
capricious or patently absurd manner that caused a manifest miscarriage of justice.
(People v. Hill (2011) 191 Cal.App.4th 1104, 1122.)
The psychologist in this case agreed “there can be a number of reasons” why
someone might try to kill himself after shooting someone else. Stating “once an officer
always an officer,” the psychologist said he was familiar with the physical effect of
adrenaline on officers who enter a situation anticipating the need for deadly force and
how that affects their psychology. But he added, “[I]t’s really hard. I would just be
speculating in terms of how someone who was no longer in law enforcement would react
in that situation.”
The psychologist did not evaluate defendant and had no means to directly
corroborate defendant’s testimony. Moreover, the psychologist demonstrated no
knowledge or expertise outside the context of returning officers to duty after on-the-job
violence. The trial court said the difference between defendant’s circumstances and the
circumstances in which the witness had expertise were “fundamental” and concluded that
the expert “had nothing to provide to the jury that they couldn’t already do with their
common sense.” The trial court appropriately evaluated the evidence and the arguments
of counsel and reached a decision that was well within the scope of its discretion. (See
People v. Hill, supra, 191 Cal.App.4th at p. 1122 [setting out discretionary standard and
burden of proof].)
Contrary to defendant’s argument, excluding the evidence did not deprive him of
the ability to present a complete defense. Defendant testified at length about his response
to the shooting, saying it was “absolutely horrible” and “extremely traumatic” to have
been “forced to shoot someone,” calling it the most difficult thing he had been through in
his life and the “straw that broke the camel[’]s back” following a difficult three-year
period where “everything had just come crashing down.” In closing, his lawyer argued
that people commit suicide for a variety of reasons, including accidents, and emphasized
that this was the “[f]irst time [defendant] ever had to shoot somebody.” Defendant’s
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explanation for his suicide attempt was presented to the jury even without the expert
opinion. There was no constitutional violation. (See Crane v. Kentucky (1986) 476 U.S.
683 [90 L.Ed.2d 636] [defining scope of constitutional right to present a defense].)
Defendant cites People v. Carter (1957) 48 Cal.2d 737 for the proposition that
testimony corroborating a defense is not cumulative. But here the trial court did not
exclude the expert testimony because it was cumulative; it excluded the testimony
because it was irrelevant and potentially confusing. Carter does not assist defendant.
B
We turn next to the witness who served as a “range master” and who would have
testified about firearms training for police officers. According to defendant, the range
master could have described defendant’s training and experience as a police officer,
thereby corroborating defendant’s testimony that a “combat-like” situation caused
defendant to shoot the victim in self-defense. Defendant claims that without the training
testimony he was unable to present a complete defense, in violation of his constitutional
rights.
The range master described himself as a former neighbor and close friend of
defendant’s. He testified that he has been employed for almost 29 years as a police
officer, serving as a firearms instructor, a Special Weapons and Tactics (SWAT) team
leader and a sniper, among other things. He described defendant as extremely honest, a
talented police officer who conducted himself as a professional both on duty and off duty,
and a man who was not violent, but was logical, cautious and deliberate. He said he last
saw defendant about five years before trial (which was two years before the crime).
Defendant wanted the range master to explain that police officers are trained to
maintain self-control in hostile situations. Defendant believed such testimony would help
the jury determine whether his response to a perceived threat from the victim was
reasonable. The trial court said expert evidence could not transform the “reasonable
person” standard for self-defense to a “reasonable retired [police] officer” standard.
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Nonetheless, the trial court allowed defendant to describe his own training and
experience at length and to explain why he thought he was defending himself. But the
trial court ruled that corroboration by the range master would involve undue consumption
of time and was not relevant because defendant was not acting as a police officer when he
shot the victim.
Revisiting the expert testimony issue when defendant raised it a second time, the
trial court observed that the reasonableness of defendant’s subjective belief that he
needed to defend himself was within the province of the jury. When defendant raised the
issue yet again in a motion for new trial, the trial court distinguished onduty shootings
from “personal situation[s]” and stated that the testimony of the firearms expert could
have led to confusion. Nonetheless, to address defendant’s concerns, the trial court had
ruled that defendant could testify about his firearms training, and the expert testimony
could come in on rebuttal if the prosecutor attacked defendant’s credibility as to what he
had been trained to observe; if the rebuttal testimony came in, the trial court had warned,
it would be limited to the “very narrow issue” of defendant’s actual belief about what he
saw before he shot the victim. The trial court had instructed the jury with CALCRIM
No. 571, informing them that the jury could find “defendant acted in imperfect self-
defense if: [¶] 1. The defendant actually believed that he was in imminent danger of
being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually
believed that the immediate use of deadly force was necessary to defend against the
danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable.”
Defendant claims he had the right to offer the expert testimony in rebuttal because
the prosecutor questioned him on cross-examination about how angry he was when his
commands were not obeyed in the manner expected by a police officer. On direct
examination, defense counsel asked about defendant’s failure to follow police training by
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finding and securing the gun he allegedly saw in the victim’s hands.1 During cross-
examination, the prosecutor inquired about defendant’s failure to offer medical aid to the
wounded man, and about how well he could hear after the shooting. Defendant
subsequently argued the questions about his hearing “opened the door” for expert
testimony to explain what happens in “combat-shooting situation[s].” The trial court
ruled that combat-shooting testimony would not be relevant and would cause an undue
consumption of the jury’s time.
Defendant argues the expert’s testimony would have gone “directly to the issue of
whether appellant committed a cold-blooded killing, as theorized by the People, or
whether defendant acted in the actual, and reasonable, or actual, but unreasonable, belief
in the necessity to defend himself.” In support, he cites People v. Humphrey (1996)
13 Cal.4th 1073, a case where the defense relied on battered woman syndrome (BWS).
BWS is the subject of a unique rule of evidence that explicitly makes expert testimony on
that syndrome admissible if it is relevant. (Humphrey, supra, 13 Cal.4th at p. 1087,
citing Evid. Code, § 1107.) Expert testimony on BWS is relevant to counter stereotyped
impressions about women who remain in abusive relationships such as the “ ‘common
sense’ ” conclusion that a woman would have fled if the situation was bad. (Humphrey,
supra, 13 Cal.4th at pp. 1086-1087.) The holding in Humphrey was limited to Evidence
Code section 1107. (Id. at p. 1087.) It did not create a broad, general right to rehabilitate
credibility with expert testimony any time a defendant asserts self-defense.
Defendant also cites People v. Minifie (1996) 13 Cal.4th 1055, for the proposition
that a defendant is “ ‘ “entitled to corroborate his testimony that he was in fear for his life
1 Defendant responded to these questions by saying that he failed to look for a gun after
the shooting because he saw no gun and because he would have done that “in the role as a
police officer . . . [b]ut this is kind of different” and, if he had been acting as an officer,
“[i]t would never have gotten to a shooting.”
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by proving the reasonableness of such fear.” ’ ” (Id. at p. 1065.) Minifie held that threats
against a defendant by third parties related to the victim could be considered by a jury to
evaluate whether a defendant’s use of force was reasonable. (Id. at p. 1069.) The trial
court in that case had improperly excluded evidence that the defendant’s friend had
recently been killed by members of the victim’s “crowd,” that the crowd had threatened
that the defendant would be “ ‘ “next,” ’ ” and that the crowd had a reputation for
violence. (Id. at p. 1067.) Minifie is inapposite; in contrast to that case, defendant here
was allowed to explain in great detail why he thought he was in imminent danger and
nothing about the excluded testimony promised to shed more light on the actual dynamics
between the victim and the defendant or on the shooting itself.
Defendant’s request to have the jury hear about combat situations from the range
master was properly denied. The only “combat” was a verbal exchange between
defendant and his wife over kitchen appliances. It is common knowledge that police
officers are trained to use firearms appropriately, but defendant had not been employed as
a police officer for quite some time and he was not on duty when he shot the victim.
There is no recognized syndrome here that might in some way parallel battered woman
syndrome, rape trauma syndrome or child abuse accommodation syndrome, but even in
those cases, expert testimony is admissible only to counter specific common myths or
misperceptions about a victim’s behavior. (See People v. Humphrey, supra, 13 Cal.4th at
p. 1087 [expert role in correcting stereotyped misconceptions of battered women];
People v. Wells (2004) 118 Cal.App.4th 179, 188-190 [same for victims of sexual trauma
and abuse].) Jurors are presumed to be equipped to judge witness credibility without the
aid of expert opinions. (Wells, supra, 118 Cal.App.4th at p. 189.)
At best, the range master would have said that police officers are taught to
recognize and react to threats, but the critical issue for the jury was not whether defendant
knew or followed police protocol but whether he had an actual belief that he was
threatened at the moment he fatally shot an unarmed man. The issue, in other words, was
11
his credibility. The range master already had testified in glowing terms about defendant’s
character and credibility. The prosecutor’s cross-examination did not challenge
defendant’s training or ability to recognize or respond to combat situations, so the right to
present rebuttal evidence was never triggered. The trial court did not abuse its discretion
in limiting additional testimony. (See People v. Hill, supra, 191 Cal.App.4th at p. 1122.)
Defendant claims that, without his friend’s “primer on weapon-use training,
behavioral training, and trained response techniques,” he was deprived of his
constitutional right to defend himself. To the contrary, the Constitution gives “ ‘wide
latitude’ ” to trial judges to exclude evidence that is “ ‘only marginally relevant’ ” or
would pose an undue risk of harassment, prejudice or confusion. (Crane v. Kentucky,
supra, 476 U.S. at pp. 689-690 [90 L.Ed.2d at pp. 644-645].) There was no abuse of
discretion.
II
Defendant next contends that in determining defendant’s ability to pay the
attorney fees, expert witness fees and probation investigation fees, the trial court
impermissibly considered his public employee disability retirement pay.
After a defendant is provided a defense at public expense, a trial court may order
the defendant to pay all or a portion of the cost of that defense, provided the trial court
first determines after notice and hearing that the defendant has the ability to pay. (Pen.
Code, § 987.8, subd. (b).) “ ‘Ability to pay’ ” means “overall capability” of the
defendant to reimburse all or a portion of the defense costs based on his or her
“reasonably discernible future financial position.” (Pen. Code, § 987.8, subd. (g)(2).)
An order to pay defense fees and costs and the manner of reimbursement must fit
the defendant’s financial condition. (People v. Smith (2000) 81 Cal.App.4th 630, 642.)
The findings supporting a trial court’s order about a defendant’s ability to pay may be
express or they may be implied by the content and context of the hearing. (People v.
Phillips (1994) 25 Cal.App.4th 62, 71.) We presume the trial court considered
12
appropriate factors in determining a defendant’s ability to pay fines, fees and costs unless
the defendant proves otherwise. (Conservatorship of Rand (1996) 49 Cal.App.4th 835,
841.) And we affirm a finding that a defendant has the ability to pay if it is supported by
substantial evidence. (Id. at p. 842.)
Defendant testified that he had retired because of disability in 2007 after 11 years
with the Burlingame Police Department. A defense witness testified that he had
defendant’s power of attorney to handle defendant’s financial affairs, and that he
followed directions from defendant about paying bills. The amount of the pension was
not disclosed, but defendant owned and was driving a Mercedes Benz on the day of the
shooting and a search warrant yielded $7,000 in cash at his apartment.
On the day the trial court sentenced defendant to prison, it reserved the question of
his ability to pay restitution for another hearing, saying it “was clear that [defendant] was
receiving a retirement benefit” and requesting details. The trial court went on to explain,
“I heard testimony that he has an income. I intend to assess all or part of that because --
well, I know I can only touch half of it, but the good citizens of El Dorado County, the
taxpayers, should not bear the burden of [paying for his defense] if the defendant has the
financial means to pay for it . . . .” The trial court suggested that if defendant expected to
shield the retirement assets, he should bring documentation to the hearing.
The trial court had little other information about defendant’s finances, apparently
because defendant refused to be interviewed for the probation officer’s report. The
probation report recommended that defendant be required to pay restitution and fees.
At the hearing to determine defendant’s ability to pay, defendant offered a 1988
California Uniform Commercial Code (UCC) filing in which he named himself as both
debtor and creditor and purported to indemnify and hold himself harmless from all claims
by “juristic person[s]” as distinguished from “sentient, living being[s].” His lawyer said
defendant described the document as a lien on “all assets,” including his retirement. The
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trial court told defendant he had seen similar documents and they did not shield assets.2
Defense counsel also asserted that the disability retirement funds were shielded by Code
of Civil Procedure section 704.110. As to the Code of Civil Procedure, defense counsel
said he “ran out of time doing the research,” but believed the disability benefits were
exempt from attachment for civil judgments.
Orders to pay restitution and other fines are enforceable “in the manner provided
for the enforcement of money judgments generally.” (Pen. Code, § 1214, subd. (a).)
With an exception for family support, public employment benefits are generally not
subject to execution or assignment. (Govt. Code, § 22970.66.) The trial court
acknowledged that the Code of Civil Procedure might shield retirement assets, but with
defendant presenting no further defense or objection, it made a finding that defendant has
the ability to pay restitution (including partial defense costs) out of his retirement and
prison earnings. The trial court ordered the Department of Corrections and Rehabilitation
to “w/hold monies from salary earned.” The abstract of judgment includes an order for
victim restitution but not for defense fees and costs.
Penal Code section 987.8 does not require an express determination of a
defendant’s ability to pay, but a finding of unusual circumstances is required before a
prisoner may be ordered to make payments. (Pen. Code, § 987.8, subd. (g)(2)(B);
People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) The unusual circumstances
requirement focuses on the prisoner’s prospects for future income. (People v. Polk
(2010) 190 Cal.App.4th 1183, 1211, fn. 29.) The trial court here did not make explicit
statements of unusual circumstances, but did note that defendant’s was “an unusual
situation” and “kind of new territory” and there was “at least indication and evidence of
an ability to pay.” The trial court said it knew from evidence presented at trial that
2 The effectiveness of the UCC filing was not raised on appeal and we do not address it.
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defendant was receiving retirement benefits and offered defendant an opportunity to
explain why those benefits could not be considered in his ability to pay restitution.
Generally speaking, a trier of fact may draw adverse inferences from a party’s
failure to explain or deny evidence. (Evid. Code, § 413.) In the context of the ability to
pay a punitive damage award, for instance, a defendant denied that he had any assets, but
a trial court properly considered evidence of offshore bank accounts and an exempt
private retirement plan. (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th
533, 546-547.) The trial court in this case invited defendant to rebut the presumption that
he has the ability to pay restitution; in response, defendant merely asserted that his
disability retirement benefits are exempt from collection.
There is sufficient evidence to support a finding that defendant has the ability to
pay. Defendant directed his friend to pay his other bills, so he presumably could direct
him to pay his legal fees. If defendant’s bills are unpaid and defendant has no resources
other than his disability retirement benefits, defendant’s creditors might face the
enforcement limitations of Code of Civil Procedure section 704.110 and Government
Code section 22970.66. (See Code Civ. Proc., § 704.110, subds. (b) and (c).) But the
issue on appeal is ability to pay, not the ultimate enforceability of the judgment.
Defendant cites Board of Retirement v. Superior Court (2002) 101 Cal.App.4th
1062 for the proposition that ability to pay cannot be determined based on consideration
of assets exempt from levy. But that case held only that a trial court could not direct a
pension fund to deduct a restitution sum from a defendant’s monthly disability allowance.
(Id. at p. 1072.) Here, the trial court affirmatively stated that it would not issue such an
order because that was the function of the California Victim Compensation and
Government Claims Board and the prison authorities.
Defendant will not be eligible for parole for 50 years. The trial court assumed he
would have prison earnings. When assessing ability to pay costs of defense, it is proper
for a trial court to consider how alternative sources of income, such as a spouse’s
15
earnings, reduce a defendant’s need for income and create a greater ability to pay.
(People v. Whisenand (1995) 37 Cal.App.4th 1383, 1392.) Here, the trial court
reasonably may have determined that defendant would have enough income from his
disability pay that his prison earnings could be applied to the legal fees. Moreover,
receipt of disability benefits alone constitutes sufficient evidence to support a finding that
a defendant has the ability to pay costs of defense. (Conservatorship of Rand, supra,
49 Cal.App.4th at p. 842.) The trial court did not err in determining that defendant had
the ability to pay. Issues may well arise if defendant has no other assets to attach or levy
and he refuses to pay, but those issues are not presented in this appeal.
Defendant next argues he should not have been ordered to pay $350 for the
preparation of a probation report because the evidence of his ability to pay was
insufficient. He asserts once more that his ability to pay was based on his exempt
disability retirement benefits, although the only finding on ability to pay for the probation
report was in the probation report itself, which did not include any financial facts. In any
event, defendant did not assert an objection to payment for the probation report in the
trial court. Accordingly, the contention is forfeited. (See People v. McCullough (2013)
56 Cal.4th 589, 597-598 [sentencing determinations may not be challenged for the first
time on appeal, including those based on a claim that there was insufficient evidence of a
defendant’s ability to pay].) Anticipating forfeiture, defendant asserts that he received
ineffective assistance of counsel. But he has not established prejudice, because even if
defendant had made a timely objection, the result would have been the same. The
evidence was sufficient to support a finding of ability to pay for the reasons discussed
ante. The claim of ineffective assistance lacks merit. (See Strickland v. Washington
(1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698].)
III
Defendant further contends the trial court improperly ordered him to pay
restitution with the $7,000 in cash seized from his apartment, because there was no
16
evidence that he had any income other than disability retirement. He asks us to order the
money returned to him or his authorized agent.
A trial court is required to “order full restitution unless it finds compelling and
extraordinary reasons for not doing so and states them on the record.” (Pen. Code,
§ 1202.4, subd. (f).) The trial court may order funds confiscated at the time of the
defendant’s arrest to be applied to the restitution order if the funds are not exempt for
spousal or child support or “any other legal exemption.” (Ibid.) Defendant offered no
evidence regarding the source of the $7,000.
Defendant now argues it should have been apparent that the funds were exempt
because, aside from retirement, defendant had “no other known source of income.” He
cites the tracing rules in Code of Civil Procedure section 703.080, but that statute clearly
states that the “exemption claimant has the burden of tracing an exempt fund.” (Code
Civ. Proc., § 703.080, subd. (b).) The trial court was not required to speculate that the
confiscated cash might have been traceable to an exempt source, nor are we. Even if
retirement benefits were the initial source of the cash, the exemption may not have been
effective. (See Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061 [“Whether it
be a fistful of dollars or $100,000 in a safe, once a debtor has had 30 days to pay for the
necessities of life out of exempt earnings, the remainder becomes available to satisfy the
debtor’s outstanding obligation to a judgment creditor.”].)
Acknowledging that defendant’s trial counsel never asserted exemption in
connection with the $7,000 in cash, he also asserts ineffective assistance of counsel “[t]o
the extent an objection was required” to preserve the contention. We have not deemed
the contention forfeited, focusing instead on whether defendant provided sufficient
evidence regarding the source of the seized cash. We conclude he did not. Although
defendant argues there is no evidence the cash did not come from his disability
retirement, the burden is on him to prove that it did. On this record, it is possible
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defendant obtained the $7,000 from a source other than his disability retirement benefits.
Defendant has not established error.
IV
In addition, defendant contends a $10,000 “ ‘general fund’ fine” was unauthorized.
The Attorney General agrees the amount does not appear to be justified as a general fund
fine. Although the trial court may have made a misstatement and then corrected itself,
never intending to impose a $10,000 general fund fine, we will strike the $10,000 general
fund fine to avoid any ambiguity.
The trial court first imposed a “20 percent surcharge,” describing it as “20 percent
of the base fine pursuant to [Penal Code] section 1465.7.” Immediately afterward, it
stated, “I will impose a $10,000 general fund fine; a $10,000 restitution fund fine; the
surcharge in the amount of 20 percent pursuant to Penal Code Section 1465.7,” and then
it ordered other fines and fees. The minute order and abstract of judgment both record
the $10,000 restitution fund fine but make no reference to a general fund fine.
Nonetheless, it is the oral pronouncement of sentence that constitutes the judgment.
(People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
Penal Code section 1465.7 requires a trial court to impose a state surcharge of
20 percent of the “base fine used to calculate the state penalty assessment.” (Pen. Code,
§ 1465.7, subd. (a).) The full amount of the surcharge must be deposited in the state’s
general fund. (Pen. Code, § 1465.7, subd. (d).) The surcharge arguably could be called a
“general fund fine” but the trial court imposed the surcharge separately and, in any event,
the “base fine” excludes restitution fines. (Pen. Code, §§ 1202.4, subd. (e), 1464,
subd. (a)(3).) Aside from restitution, the trial court imposed only a probation report fee
of $350, a court security fee of $40 and a criminal conviction assessment of $30. If
construed as a “general fund fine,” a 20 percent surcharge on a “base fine” of $420 would
have been $84, not $10,000. Using the same “base fine” calculation, a state penalty
assessment of $420 was authorized by Penal Code section 1464 (calculated under
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subdivision (a)(1) as a $10 assessment on every $10 of base fine) and that assessment is
separate from, and in addition to, the state surcharge. (Pen. Code, § 1465.7, subd. (b).)
But again, even if called a “general fund fine,” that assessment would have been $420,
not $10,000. The probation report recommended each of the fines actually imposed, but
it made no mention of any “general fund fine.”
Thus, it appears the trial court intended merely to correct the misspoken words
“$10,000 general fund fine” and replace them with the words “$10,000 restitution fund
fine.” Nonetheless, to clear up any ambiguity in the oral pronouncement of judgment, we
will strike the $10,000 general fund fine.
V
In reviewing the record we have also identified a clerical error on the abstract of
judgment.3 As we have explained, the trial court sentenced defendant to 25 years to life
on the count I murder conviction and 25 years to life for one of the firearm
enhancements. But item 6 of the abstract indicates that defendant was sentenced to 50
years to life on count I “PLUS enhancement time shown above[.]” Item 6 of the abstract
of judgment must be corrected to reflect that defendant was sentenced to 25 years to life
on count I.
DISPOSITION
The judgment is modified to strike the $10,000 general fund fine. The judgment is
affirmed as modified. The trial court is directed to amend the abstract of judgment to
reflect the judgment as modified, and to correct item 6 of the abstract of judgment to
reflect that defendant was sentenced to 25 years to life on count I. The trial court shall
3 The parties did not raise this issue in their briefs. Because the clerical error appears
clear, however, we will order correction of the abstract without further briefing in the
interest of judicial economy. Any party aggrieved may petition for rehearing. (Gov.
Code, § 68081.)
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forward a certified copy of the amended and corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
MAURO , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
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