Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA076186. Tomson T. Ong, Judge.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Byron Green (defendant) of one count of burglary (Pen. Code, § 459) (count 1) and one count of making a criminal threat (§ 422) (count 2). On appeal, defendant contends that (1) the evidence was insufficient to sustain his conviction for burglary because the evidence at trial established that the apartment he entered was his own home; (2) the evidence was insufficient to sustain his conviction for making a criminal threat because the evidence at trial established that his threat lacked immediacy and that the victim, Cynthia Green (Green), was not in sustained fear; (3) his sentence on count 2 for making a criminal threat should be stayed pursuant to section 654; and (4) the trial court erred by imposing a penalty assessment and surcharge on a restitution fine. We conclude that the last two arguments have merit, and order the judgment modified accordingly. In all other respects, we affirm.
Statutory references are to the Penal Code unless stated otherwise.
On appeal, “we must view the evidence in the light most favorable to the verdict and presume the existence of each fact that a rational juror could have found proved by the evidence. [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 139-140, fn. 30, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A. The Prosecution Case
Defendant and Green were married in 1988. For approximately eight years, they lived together in an apartment on Lakewood Boulevard in Long Beach. Defendant was twice convicted of committing domestic violence against Green, first in 1993 and then again in 2003. In late 2005 or early 2006, Green and defendant separated, and defendant moved out of the apartment. Defendant moved to Oklahoma, where he lived for “about a year.” Defendant did not keep any keys to the apartment.
In late 2006, defendant suffered a death in his family. He asked Green if he could stay at the apartment to visit his family for the holidays. Green told defendant that “he could stay in the guest room until after the holidays.” Green did not give defendant a key to the apartment. In January of 2007, Green asked defendant to leave, but defendant refused. Green called the police, but the police informed Green that they could not make defendant leave because Green had invited him over. Ultimately, Green used a ruse to lure defendant to leave the apartment.
Over the following months, Green occasionally allowed defendant to come to the apartment to do laundry and to eat. During this time, Green never let defendant sleep over and allowed him to visit the apartment only when she was present.
On October 19, 2007, Green went to her apartment to meet with a male friend. She then left, alone, for a medical appointment. On her way to the appointment, she received a phone call from defendant. When Green answered, defendant said, “I seen you with your boyfriend” and threatened, “I’m going to snap your neck.” Green was “scared” and hung up the phone. Defendant called Green back approximately 15 minutes later. During this second call, Green’s caller I.D. indicated that defendant was calling from Green’s apartment. Green became alarmed. When Green answered, defendant said that “he was going to kill [her].” Green testified, “He kept calling me back. I kept asking him how did he get in my apartment. He wouldn’t answer the question. He just kept threatening me.”
After attending her medical appointment, Green received another phone call from defendant. During this phone call, defendant asked if Green was on her way home and told her that “as soon as [she] walked in the door he was going to snap [her] neck.” Green immediately pulled over and contacted the police. Police officers met Green behind her apartment complex and she gave them the key to her apartment. The officers then went up to the apartment, arrested defendant, and searched him. The officers did not find a key in defendant’s possession, but they did recover a window latch from defendant’s pocket. The latch had two holes that matched the holes on a window frame in the apartment, which was missing a latch. The officers did not find men’s clothing or toiletries when they looked around the apartment.
B. The Defense Case
Defendant stated that he had never moved out of the apartment. He testified that he received his mail at the apartment, and that the utilities were in his name. He explained that he had stayed at a hotel the night before he was arrested based on advice from a counselor. Defendant further testified that he did not have keys to the apartment because Green took them from him approximately two years prior to the trial, when she became upset about his work schedule as a truck driver.
On the day of the crime, defendant observed Green with another man. When Green and the other man left Green’s apartment, defendant called Green from a pay phone, told her that he had seen her with the other man, and asked, “Can we talk about this?” Defendant then went back to Green’s apartment. He testified that he entered the apartment through an open door. At Green’s apartment, he picked up a window latch from his stepdaughter’s bedroom so that he could fix it. Defendant denied threatening Green on the phone. Defendant said that he had pleaded guilty to charges of domestic violence in 1993 and 2003 to avoid harsher punishment.
C. Procedural Background
In an information filed November 19, 2007, defendant was charged with first degree residential burglary (§ 459) and making criminal threats (§ 422). A jury convicted defendant on both counts.
The trial court denied probation and sentenced defendant to state prison for four years and eight months, consisting of the mid term of four years on count 1 and a consecutive eight month sentence, or one-third of the mid term, on count 2. Additionally, the trial court ordered defendant to pay a restitution fine of $800 (§ 1202.4, subd. (b)); a parole revocation restitution fine of $800, stayed (§ 1202.45); an $80 assessment and surcharge (§1464; Gov. Code, § 76000); and a $20 court security fee for each count, for a total of $40 (§ 1465.8, subd. (a)(1)). Defendant received 379 days of presentence credit, consisting of 253 days of actual custody and 126 days of conduct credit. Defendant timely appealed.
DISCUSSION
A. Burglary Conviction
Defendant argues that the evidence was insufficient to sustain his conviction for burglary because the evidence at trial established that the apartment he entered was his own home. We conclude that there was sufficient evidence to permit a reasonable jury to conclude that the apartment was no longer defendant’s residence. The jury therefore properly convicted defendant of burglary.
1. Standard of Review
Defendant challenges the sufficiency of the evidence. “‘In determining the sufficiency of the evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’” (People v. Kelly (2007) 42 Cal.4th 763, 787-788.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) We will reverse for insufficient evidence only if “‘“‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’”’” (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
2. Sufficient Evidence
The burglary statute provides in pertinent part: “Every person who enters any... apartment... with intent to commit... any felony is guilty of burglary.” (§ 459.) Generally, a person cannot be convicted of burglarizing his or her own home. (People v. Gauze (1975) 15 Cal.3d 709, 714.) Accordingly, “[t]o sustain a burglary conviction, the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence. [Citation.]” (People v. Davenport (1990) 219 Cal.App.3d 885, 892 (Davenport); see also People v. Pendleton (1979) 25 Cal.3d 371, 382 [“one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter”]; People v. Gauze, supra, 15 Cal.3d at p. 714.) That a defendant does not have an unconditional possessory right in the home can be established through evidence, for example, that the person has moved out of the residence (People v. Sears (1965) 62 Cal.2d 737, 746), or through evidence that the defendant’s spouse has commenced divorce proceedings or obtained a temporary restraining order preventing the defendant from entering the home. (People v. Smith (2006) 142 Cal.App.4th 923, 929; see also Davenport, supra, 219 Cal.App.3d 885 at p. 892.)
The jury in this case was instructed, inter alia, pursuant to CALJIC No. 14.52 that “[t]he burden of proof beyond a reasonable doubt is on the [P]eople to show that the inhabited dwelling house is not defendant’s own home.”
In People v. Gill (2008) 159 Cal.App.4th 149 (Gill), for example, the defendant’s wife ejected him from the house after the couple had marital problems. That same day, through a neighbor, the wife gave the defendant fifty dollars, a suitcase with clothes, and a note. (Id. at p. 152.) The neighbor delivered the items to the defendant, collected the defendant’s house keys and returned the keys to the defendant’s wife. (Ibid.) That night, the defendant sat in a parked car in front of the house and the wife called the police. (Ibid.) The wife requested an emergency temporary restraining order from the officers, but the officers denied her request. (Ibid.) The officers then spoke with the defendant and his wife and suggested that “one of them leave in order to avoid any further problems.” (Ibid.) The defendant refused to leave, stating that “it was unfair.” (Ibid.) In the middle of the night, the defendant broke a window, entered the house, and then raped and kidnapped his wife. (Id. at p. 153.)
On appeal, the defendant argued that “a man who breaks into his family home after a marital fight is not guilty of residential burglary.” (Gill, supra, 159 Cal.App.4th at p. 158.) The court rejected the defendant’s argument and held the jury properly convicted the defendant of burglary. (Ibid.) The court reasoned that when the defendant voluntarily left the house and relinquished his house keys, “he gave up his right to possessory interest in the house and understood he did not have the right to enter the residence at will.” (Id. at p. 161.) The court also noted that “the occupants of the family home were estranged, there had been prior threats to the safety of the victim and there had been incidents of spousal abuse. The victim[] feared for [her] safety. [Citation.] It is clear in these circumstances that danger did arise from the mere entry of defendant into his former home.” (Ibid.)
Here, defendant packed his belongings, gave up his keys, moved out of the apartment, and began living in Oklahoma sometime in late 2005 or early 2006. Approximately one year later, defendant asked for permission to visit during the holidays and Green allowed him to do so, on the condition that he sleep in the guest room. Defendant was not given a key. Although Green allowed defendant occasionally to wash his clothes and to eat at her apartment, there was no evidence that he regained an unconditional possessory right to enter the apartment. Furthermore, defendant was convicted of domestic violence against Green on two separate occasions. Green feared for her safety. As in Gill, supra, 159 Cal.App.4th 149, defendant’s uninvited entry into the apartment could create a dangerous situation. There was thus sufficient evidence to support the jury’s conclusion that defendant did not have an unconditional possessory right to enter the apartment, and to support defendant’s burglary conviction.
Defendant argues, inter alia, that because he received his mail at the apartment and the utilities were in his name that he had an unconditional possessory right to enter the apartment. But defendant cites no authority that these facts compelled as a matter of law the conclusion that he had an unconditional right to enter the apartment, and the jury’s verdict establishes that the jury found this evidence unpersuasive. There was sufficient evidence to support the burglary conviction.
B. Criminal Threats Conviction
Section 422 states in pertinent part, “Any person who willfully threatens 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 it 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... shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” (§ 422.) Defendant argues that the evidence was insufficient to sustain his conviction for criminal threats because the evidence at trial established that his threat lacked immediacy and that Green was not in sustained fear. We disagree with both contentions.
1. Immediacy
“‘To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier “so” unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.’ [Citation.] ‘[W]hether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an... immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.’ [Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)
In People v. Gaut (2002) 95 Cal.App.4th 1425 (Gaut), the defendant was physically abusive toward his girlfriend and was arrested and incarcerated. (Id. at pp. 1427-1428.) While in jail, the defendant called and threatened the woman. (Id. at pp. 1428-29.) The defendant was subsequently convicted of making criminal threats. (Id. at p. 1427.) On appeal, the defendant argued that “because [the defendant] was incarcerated and unable to carry out the threats there was no immediate prospect of execution.” (Id. at p. 1431.) This Division affirmed the conviction. We held that whether threatening words are “‘sufficiently... immediate and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances. [Citation.]” (Id. at p. 1431.) Because the defendant in Gaut “had a lengthy history of not only threatening but also physically assaulting” his victim (ibid.), and because the victim feared that the defendant soon would be released from jail or would “send someone to get her” (id. at p. 1432), we concluded that it was reasonable for the victim to fear that the defendant would follow through on his threats, notwithstanding his incarceration. (Id. at p. 1431.)
As in Gaut, supra, 95 Cal.App.4th 1425, it was reasonable for Green to fear that defendant would carry out his threats. Defendant had twice been convicted for domestic violence against Green. Apparently unknown to Green, defendant was watching her secretly, and had seen her with another man. Defendant then broke into Green’s home and called her with the threat that he would “snap [her] neck” when she returned home. “‘A threat is not insufficient simply because it does not “communicate a time or precise manner of execution, section 422 does not require those details to be expressed.”’ [Citations.]” (Gaut, 95 Cal.App.4th at p. 1432.) There was substantial evidence to support the jury’s finding that defendant’s threats were “so unequivocal, unconditional, immediate, and specific as to convey to [Green] a gravity of purpose and an immediate prospect of execution of the threat.” (§ 422.)
Defendant relies on People v. Bolin (1998) 18 Cal.4th 297 (Bolin) to argue that the threats he made were mere “angry utterances.” Bolin is not analogous. In Bolin, the defendant sent a threatening letter from prison while awaiting trial. (Id. at p. 311.) The appellate court commented that “the nature and circumstances of the threats would not necessarily provoke serious concern, especially considering defendant was incarcerated and would at the least have to make outside arrangements to effect them.” (Id. at p. 340 [italics added]; cf. People v. Gaut, supra, 95 Cal.App.4th 1425 [fact of defendant’s incarceration not dispositive when totality of circumstances make threat immediate].) Unlike Bolin, defendant was not incarcerated; he was waiting for Green in her own apartment after he had broken in and threatened to kill her. There was substantial evidence for a reasonable jury to conclude that defendant’s threat had an immediate prospect of execution.
In Bolin, supra, 18 Cal.4th 297, the section 422 issue arose in the context of the defendant’s contention that the trial court’s admission into evidence of a threatening letter the defendant had sent was improper because the letter did not constitute evidence of criminal activity. The defendant in that case was not appealing a conviction under section 422.
2. Sustained Fear
Section 422 requires that the threat caused the victim to be “in sustained fear for his or her own safety.” Sustained “means a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) “A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) “The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (Allen, supra, 33 Cal.App.4th at p. 1156 .)
In People v. Mendoza (1997) 59 Cal.App.4th 1333, the defendant, a gang member, threatened a former associate of the gang who had testified against the defendant’s brother at a preliminary hearing in another case. (Id. at p. 1337.) The defendant stated the associate had ‘“fucked up his brother’s testimony,’ and that ‘[h]e [the gang member] was going to talk to some guys from [his gang].”’ (Ibid.) Shortly thereafter, the associate saw a member of the defendant’s gang parked outside her house. (Id. at p. 1338.) The associate called the police, who responded in 15 to 30 minutes. Two hours later, police located and arrested the gang member who had been in front of the associate’s house. (Ibid.) The court concluded that there was sufficient evidence that threats “placed [the associate] in a state of sustained fear.” (Id. at p. 1342.) At least 15 to 30 minutes had passed before police responded to the associate’s call, and two additional hours had passed before the gang member was apprehended. Whether the relevant time period was 15 minutes or two hours, “the period of time [the associate] was in a state of sustained fear was more than momentary, fleeting or transitory and therefore sufficiently long to satisfy the statute.” (Ibid.; see also Allen, supra, 33 Cal.App.4th at p. 1156 [15 minutes of sustained fear sufficient].)
In this case, defendant called and threatened to snap Green’s neck while Green was en route to her medical appointment. He continued to call and threaten to kill Green after she left the medical appointment and traveled home. Green testified that she was afraid, and the fact that she called the police to check her apartment before returning home supports her testimony. There was substantial evidence that Green was in sustained fear.
Defendant argues that the fact that Green attended her medical appointment establishes that she did not feel menaced by defendant. The jury concluded otherwise, however, and there is substantial evidence to support that finding. We affirm defendant’s conviction for making a criminal threat.
A. Section 654
1. Additional Background
The jury was instructed in this case with a modified version of CALJIC No. 14.50, as follows: “Every person who enters any building with the specific intent to commit criminal threat, a felony, is guilty of the crime of burglary in violation of Penal Code section 459. [¶]... [¶] In order to prove this crime, each of the following elements must be proved: [1] A person entered a building; and [2] At the time of the entry, that person had the specific intent to commit the crime of criminal threat.” (Italics added.)
During the sentencing hearing, defendant argued that there was “a [section] 654 issue.” The trial court disagreed, stating, “I remember he [defendant] stole the latches. That’s the res burg. And then he made a threat separate to that.” Defendant argued that the People’s theory at trial was that defendant effected entry into Green’s apartment with intent to commit criminal threats. The trial court responded, “[H]e stole the latches so he could come back another day.” The trial court further stated, “This involves a case of different elements of crimes and discrete acts at different time frames because burglary is—burglary is completed at the time of the break-in with the intent, and the intent was for—frankly, just itself, the intent.” The trial court sentenced defendant to a consecutive term on his conviction for making criminal threats on count 2.
2. Discussion
Defendant contends that section 654 bars separate punishment for his criminal threats conviction. When making a section 654 ruling, “[t]he defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
Section 654 mandates: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Italics added.) “The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the 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.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both. [Citations.]” (People v. Centers (1999) 73 Cal.App.4th 84, 98.)
As noted, the jury was instructed that, to convict defendant of burglary, it must find beyond a reasonable doubt that defendant entered Green’s apartment with the intent to commit the crime of making a criminal threat. The trial court further instructed the jury that “[i]f anything concerning the law said by the parties in their argument or at any other time during the trial conflicts with [the court’s] instructions on the law, [the jury] must follow [the court’s] instructions.” We presume the jury followed the trial court’s instructions. (See, e.g., People v. Avila (2009) 46 Cal.4th 680, 719; People v. Bennett (2009) 45 Cal.4th 577, 596.) Furthermore, during the prosecutor’s argument to the jury, the prosecutor told the jury that, to prove defendant guilty of burglary, the People were required to prove that defendant entered Green’s apartment with “the specific intent to commit the crime of criminal threats.” Accordingly, by convicting defendant of burglary, the jury necessarily found that the felony underlying the burglary was the crime of making criminal threats. Under section 654, defendant cannot be punished both on his conviction for burglary and on his conviction for making criminal threats.
Based on the trial court’s remark that “[defendant] stole the latches so he could come back another day,” the People argue that the trial court reasonably could conclude that defendant had the simultaneous intent when he entered the apartment both to make criminal threats and to steal the window latch. But putting a window latch in one’s pocket is not, in itself, a crime, and defendant was neither charged with nor convicted of stealing or attempting to steal the window latch. To the contrary, the prosecutor argued to the jury not that defendant stole the latch to come back another day, but that defendant had broken into the apartment through the window from which the latch had been taken to commit his crimes in this case.
The People also argue that the trial court could have determined that defendant entered Green’s apartment with the intent to assault her, and that defendant formed the intent to threaten Green only after he entered the apartment and found that Green was not yet home. But the trial court made no such finding, and again, any such finding would be contrary to the jury’s determination that defendant entered the apartment with the intent to make criminal threats.
Because the burglary and criminal threats were committed with a single intent and objective, defendant can only be punished for one crime. Defendant’s sentence for making criminal threats must be stayed pursuant to section 654.
D. Penalty Assessments, Crime Prevention Fine and Court Security Fee
The trial court ordered defendant to pay a restitution fine of $800 (§ 1202.4, subd. (b)); a parole revocation restitution fine of $800, stayed (§ 1202.45); $80 in penalty assessments (§ 1464; Gov. Code, § 76000); and a $20 court security fee for each count, for a total of $40 (§ 1465.8, subd. (a)(1)). Defendant argues that the assessment and surcharge were unauthorized and must be stricken. We agree.
Section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1) both provide for penalty assessments “upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses....” The penalty assessments do not apply, however, to “[a]ny restitution fine.” (§ 1464, subd. (a)(3)(A); Govt. Code, § 76000, subd. (a)(1)(3)(A); see People v. Walz (2008) 160 Cal.App.4th 1364, 1372.) The penalty assessments also are not levied on court security fees. (§ 1465.8, subd. (b).) The trial court imposed no other “fine, penalty, or forfeiture” on defendant to support the imposition of the penalty assessments. Accordingly, the penalty assessments must be stricken.
The People argue that the trial court erred by failing to impose a $10 crime prevention fine pursuant to section 1202.5, subdivision (a). Because such error is not jurisdictional, however, the People forfeited their contention by failing to object in the trial court.
Section 1202.5, subdivision (a) provides in relevant part, “In any case in which a defendant is convicted of... the offenses enumerated in Section... 459..., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.” (Italics added.)
Imposition of a fine pursuant to section 1202.5, subdivision (a) is thus dependent on the trial court’s determination of whether the defendant has the ability to pay all or part of the fine. “‘Because factual issues come into play in determining whether a defendant has the ability to pay the... fine, the failure to impose the fine is “not correctable without considering factual issues presented by the record or remanding for additional findings.” [Citation.] On a silent record, we presume the trial court determined that defendant did not have the ability to pay and thus should not be compelled to pay the fine. [Citations.]’” (People v. Stewart (2004) 117 Cal.App.4th 907, 911 [section 290.3 fine]; see also People v. Walz, supra, 160 Cal.App.4th at p. 1371 [section 290.3 fine]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 [fine pursuant to Health & Saf. Code, § 11372.7, subd. (b)].)
Accordingly, if a trial court fails without explanation to impose a fine pursuant to section 1202.5, subdivision (a), that is not jurisdictional error. (See People v. Walz, supra, 160 Cal.App.4th at p. 1371; People v. Martinez, supra, 65 Cal.App.4th at p. 1517.) In this case, the trial court did not impose the fine, and the record is silent regarding the reasons why. The People did not object in the trial court to the trial court’s failure to impose the fine. (See People v. Burnett (2004) 116 Cal.App.4th 257, 262; see also People v. Tillman (2000) 22 Cal.4th 300, 301-302 [People’s failure to object forfeits assertion that trial court erred in making discretionary choice not to impose fines].) We therefore presume that the trial court determined that defendant did not have the ability to pay the fine.
Finally, the parties agree that the abstract of judgment must be corrected to reflect that the trial court imposed a $20 court security fee (§ 1465.8, subd. (a)(1)) on each of defendant’s two convictions in this case, for a total of $40. The abstract should be so corrected.
DISPOSITION
Defendant’s sentence for making a criminal threat on count 2 is ordered stayed pursuant to section 654, pending the finality of the judgment and service of the sentence imposed for burglary on count 1; the stay is then to become permanent. The trial court is directed to strike defendant’s penalty assessment and surcharge of $80. Additionally, the abstract shall be corrected to reflect a $20 court security fee for each count, for a total of $40. In all other respects, the judgment is affirmed. The clerk of the Superior Court is directed to prepare a modified abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.