Filed 2/21/14 P. v. Vetter CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDY EARL VETTER,

Defendant and Appellant.

F064818

(Super. Ct. Nos. 10CM2863, 

11CM1723)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Robert S. 

Burns, Judge.

William I. Parks, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda 

Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

A jury found defendant Randy Earl Vetter guilty of burglary (Pen. Code, § 459)1

and theft (§ 484, subd. (a)) of a Wal-Mart. He was sentenced to a four-year term with 

three years to be served in county jail and one year under post-release supervision. 

On appeal, Vetter contends: (1) the jury instructions on reasonable doubt violated 

his right to due process; (2) the trial court abused its discretion by imposing the middle 

term for the burglary conviction; (3) fees for probation services may not be imposed 

because the trial court did not orally impose those fees; (4) the imposition of fees without 

a determination of Vetter’s ability to pay was error; (5) the trial court erred by imposing 

two, one-year enhancements for prison priors; and (6) he was denied effective assistance 

of counsel because of various omissions by his attorney. The People concede the third 

and fifth claims of error. 

We agree with the parties that Vetter may not be subject to fees that were not 

orally announced by the court and that he should have received only one sentencing 

enhancement for serving a single prior prison term. We therefore strike one, one-year 

sentencing enhancement and order the court to correct the minute order for the sentencing 

hearing. We remand the matter to the trial court to determine what portion of Vetter’s 

three-year term will be served in county jail and what portion, if any, will be served under 

mandatory supervision. In all other respects, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On the evening of April 30, 2011, Gerald Butts and Warren Arnold were working 

together as plainclothes loss-prevention agents at a Wal-Mart in Hanford. The agents 

were walking the floor conducting surveillance when Vetter caught their attention. Butts 

first noticed Vetter in the cosmetics department with a woman, later identified as Tisha 

Couch. They had a shopping cart. Vetter selected several items of cosmetics and “started 

looking around a lot,” which was suspicious to Butts. Couch walked away with the cart, 

 

1Subsequent statutory references are to the Penal Code unless otherwise noted.
3.

and Vetter remained in the cosmetics area with some merchandise. Vetter then went to 

the women’s underwear department where he met Couch and placed some items in the 

shopping cart. 

Vetter took the shopping cart and walked to the men’s department by himself. He 

selected several packages of socks, a wallet, and a belt and put them in the cart. He went 

to the shoe department, selected a pair of boots, which were packaged in a box, and

placed the boot box in the cart. He headed to the front of the store with the cart and 

stopped near a fitting room in the women’s department. Still alone, Vetter removed the 

boots, two packages of socks, and two cosmetic items from the shopping cart and took 

them to the jewelry counter, where he paid for the items. The merchandise was placed in 

two plastic Wal-Mart shopping bags. Butts told Arnold to follow Vetter outside while he

remained in the store to look for Couch. 

Arnold followed Vetter out of the store and saw him walk across the parking lot to 

his truck. From the front of the store, Arnold observed Vetter put the items he had just 

purchased in the truck. Vetter first put the bagged items on the driver’s seat and then 

removed the items from the bags. Vetter smoked a cigarette and put the empty plastic 

Wal-Mart shopping bags in his pants pocket. After about five minutes outside, Vetter 

walked back in the store. 

Arnold watched Vetter walk to the underwear department, where he met Couch. 

She had a shopping cart. Vetter took a belt from the cart, removed its plastic hanger, and 

put the belt on. Butts observed Vetter take a wallet out of the cart, take it out of a box,

and put it in his pocket. Arnold saw Vetter walk by himself to the shoe department and 

take a box of shoes that looked like the shoes he had just purchased. Vetter went to the 

men’s department and got some socks. He then walked back to the women’s underwear 

department and met up with Couch. He took the empty Wal-Mart shopping bags out of 

his pocket and put some socks, the shoe box, and some cosmetics in the shopping bags. 
4.

Vetter took some women’s underwear from the shopping cart and walked to the registers

at the front of the store. He was alone and without a shopping cart. 

At the register, Vetter placed the two shopping bags with the shoes and socks on 

the floor. The cashier rang him up for the women’s underwear, and Vetter paid for the 

items with a Red Cross debit card. He picked up the two shopping bags from the floor, 

took the bag of items he paid for, and walked to the exit. At this point, Butts approached 

Vetter and identified himself as Wal-Mart security. Arnold joined them. Butts asked 

Vetter if he had any unpaid merchandise with him and Vetter said no. Butts told Vetter 

that he saw him put the boots, socks, and cosmetics in the bags and put on the belt and 

conceal the wallet. Vetter agreed to go to the loss-prevention office with the two agents. 

In the loss-prevention office, Arnold told Vetter, “I need the merchandise that you 

bagged up back.” Vetter put the two bags of items he had not paid for on a table. The 

bags contained shoes, socks, and some makeup. Vetter also started removing the belt he 

was wearing. Butts said he would need the wallet back, and Vetter placed the wallet on 

the table. The value of the merchandise taken was around $80. The store policy was to 

call the police if the merchandise taken was worth $25 or more. 

Hanford Police Officer Mark Carrillo was dispatched to Wal-Mart. He met Vetter 

in the loss-prevention office. Carrillo conducted a pat-down search of Vetter and found a 

clothing label tag in his rear pants pocket. He noticed that Vetter was wearing more than 

one shirt, and one of the shirts appeared to match the clothing tag. Vetter agreed to speak 

with Carrillo. He told the officer that he had nothing and he needed to get some things. 

Vetter said he did not come to Wal-Mart to steal and he was not a thief. 

Carrillo found that Vetter had $2.25 in cash, a Red Cross ATM card, which he had 

received after his house burned down, and a brown leather day planner. Vetter said there 

was about $80 on the Red Cross card. Carrillo saw that the day planner had a list of items 

including boots, socks, hair scissors, safety pins, belt, and wallet. There was also a WalMart receipt. 
5.

Carrillo was informed that Vetter had been stealing things together with a woman 

who was still in the store. After speaking with Vetter, Carrillo met with Couch near a 

clothing aisle. She appeared “[v]ery fidgety, nervous [with] rapid hand movements [and

a] stutter in her speech,” and Carrillo concluded that she was under the influence of 

methamphetamine. In her purse was a shirt that was identical to one of the shirts Vetter 

was wearing. Couch said Vetter put it there. 

The Kings County District Attorney filed a two-count information against Vetter

on September 6, 2011. The information alleged that Vetter unlawfully entered a 

commercial building, Wal-Mart, with the intent to commit larceny (§ 459, burglary, 

count 1) and stole the personal property of Wal-Mart (§ 484, subd. (a), theft, count 2). It 

was further alleged that Vetter had four prior criminal convictions and had served a 

prison term for those offenses. (§ 667.5, subd. (b).) 

On January 30, 2012, a jury trial began. The next day, outside the presence of the 

jury, Vetter entered a conditional admission of two of the alleged prior convictions with 

the understanding that this would result in a one-year enhancement to any sentence 

imposed in the current case. Vetter admitted that, in June 2004, he was convicted of a 

violation of former section 12312, possession of materials with intent to make an 

explosive or destructive device, and former section 12303, possession of a destructive 

device other than fixed ammunition. (Stats. 1978, ch. 579, § 46; Stats. 1983, ch. 1092, 

§ 329.) The court struck the remaining allegations of prior criminal convictions at the 

request of the People. 

Butts, Arnold, and Carrillo testified for the People. In addition to describing his 

observations of Vetter, Arnold testified about the video surveillance system at Wal-Mart. 

He reviewed surveillance recordings after the incident of April 30, 2011. Not every 

portion of the incident was recorded. For example, there was no recording of Vetter 

putting on the belt because there was no video camera at the underwear aisle where he put 

the belt on. 
6.

There were six video clips of Vetter: (1) at the cosmetics aisle, (2) at the jewelry 

counter paying for items, (3) leaving the store after his first purchase, (4) reentering the 

store, (5) at the register the second time he bought items, and (6) being stopped by Butts 

and Arnold. These recordings were saved. Later, however, when an investigator from 

the district attorney’s office requested surveillance video, only four of the clips were 

available. The video clips of Vetter at the jewelry counter paying for items and reentering 

the store had been taped over.2 

Arnold believed all six video clips were important to the investigation. Vetter’s 

attorney asked what happened to the two missing clips. Arnold testified that, on the night 

of the incident, they burned two discs of the six video clips—one for Wal-Mart and one 

for the police. But when Arnold looked in the store’s file for the disc to respond to the 

investigator’s request, it was not there. 

Vetter testified on his own behalf. He admitted that he had been convicted of 

possession of a destructive device and possession of materials with the intent to make a 

destructive device. He had entered a guilty plea and was sentenced to five years eight 

months in prison for the offenses. He spent 2 years 10 months in prison and was paroled 

in September 2007. He was discharged from parole 13 months later. Vetter described 

these offenses as “like a hobby” that started with fireworks. He said, “[I]t progressed 

from there. And, then, it went into other things and, then, a blasting cap ended up going 

off in my hand.” The explosion blew off the tips of the index and middle fingers and 

thumb of his left hand. 

Vetter said he went to Wal-Mart on April 29, 2011, and bought a belt, a wallet, and 

a day planner. He paid for the items with a Red Cross debit card. A few days earlier, 

 

2Arnold did not tape over the video clips. He testified that when there were old 

videos saved on the hard drive, other employees would erase them without checking what 

they were. 
7.

Vetter had been in a fire, and he “got out with a pair of boxers ....” He lost everything 

else he owned. 

On April 30, 2011, Vetter went to Wal-Mart with Couch, his girlfriend at the time. 

He had about $45 in cash and the Red Cross card. He was wearing the belt and carrying 

the wallet he had bought the night before. Vetter tried on a pair of boots while he was in 

the store and left them on. He put the shoes he had been wearing in the box for the boots. 

He bought the boots, socks, and some underwear. After he completed his purchase, he 

went out to his truck and smoked a cigarette.3 

Then Vetter went back into the store to get Couch. He carried the two bags of 

merchandise he had just purchased. Couch had a shopping cart that was completely full. 

Vetter tried to coax her out of the store and told her that he only had about $17 or $20 

left. Couch gave him a few of the items she most wanted, and he went to the front of the 

store to pay for those items. At this point, Vetter had taken off the boots he had bought. 

He testified, “[W]hen I came back in, I had taken the boots off, put them back in the box 

and I grabbed a box of—a new box of boots and put those in there.”4 His attorney asked 

why he exchanged the boots he had been wearing for another new pair, and Vetter 

responded, “Something to do,” but he was not trying to defraud anybody. 

As Vetter walked out the door, someone said, “Randy, are you going to pay for 

that,” and Vetter stopped. He put down all his shopping bags and Butts told him not to 

 

3Vetter disputed how far away he had parked from the entrance of the store. 

Arnold testified that he watched Vetter from near the front of the store and Vetter’s truck 

was parked five or six parking spaces from the store, a distance of about 50 to 100 feet 

from Arnold. Vetter testified he parked much farther from the store, at a distance of 

about 340 feet from the entrance. Vetter’s attorney argued it would be impossible for a 

person standing so far away to see what Vetter was doing in the cab of his truck. 

4On cross-examination, Vetter explained that he was still wearing the newly 

purchased boots when he reentered the store. He went to the shoe section, took off the 

boots and put on his old shoes (which had been in the shoe box). He then apparently left 

the boots he had been wearing and took a new box of boots of the same kind. 
8.

worry about them. He went to a little office with Butts. Later, a woman came into the 

office with Vetter’s bags. Butts talked about Wal-Mart’s procedures for dealing with 

shoplifters. Vetter understood that it would be taken care of “civilly through Wal-Mart 

and the person rather than going through the police department.” 

Vetter explained the shirt tag found in his pocket was from a shirt he had bought

the day before. He was wearing three or four shirts when he went into Wal-Mart because,

he said, “everything I owned was on my back.” The list Carrillo found in Vetter’s day 

planner was a shopping list of things he wanted to get with the last of the money he had. 

Vetter testified that he went back into Wal-Mart to see why Couch had not come 

out yet. He took his shopping bags with him to demonstrate to Couch that he was done 

shopping. He did not steal anything from Wal-Mart; everything in his possession he paid 

for. 

On January 31, 2012, the jury began deliberations and reached a verdict. The jury 

found Vetter guilty of counts 1 and 2. 

At the sentencing hearing on April 11, 2012, the trial court imposed the middle 

term of two years, plus two additional years for prison priors, for count 1. For count 2, 

the court imposed 180 days, which it stayed pursuant to section 654. The court ordered 

Vetter to serve three years of the four-year term in the Kings County Jail, followed by one 

year of post-release mandatory supervision. Various fines and fees were also imposed. 

Vetter filed a notice of appeal the same day. 

DISCUSSION

I. CALCRIM No. 220

The People and Vetter both requested jury instructions CALCRIM No. 220 and 

CALCRIM No. 222. The parties had no objections to the trial court’s proposed jury 

instructions, which included the requested instructions. The court read the instructions to 

the jury and a copy was given to the jury for deliberations. The jury was given 

CALCRIM No. 220 as follows:
9.

“220. [¶] The fact that a criminal charge has been filed against the 

defendant is not evidence that the charge is true. You must not be biased 

against the defendant just because he has been arrested, charged with a 

crime, or brought to trial.

“A defendant in a criminal case is presumed to be innocent. This 

presumption requires that the People prove a defendant guilty beyond a 

reasonable doubt. Whenever I tell you the People must prove something, I 

mean they must prove it beyond a reasonable doubt unless I specifically tell 

you otherwise.

“Proof beyond a reasonable doubt is proof that leaves you with an abiding 

conviction that the charge is true. The evidence need not eliminate all 

possible doubt because everything in life is open to some possible or 

imaginary doubt.

“In deciding whether the People have proved their case beyond a reasonable 

doubt, you must impartially compare and consider all the evidence that was 

received throughout the entire trial. Unless the evidence proves the 

defendant guilty beyond a reasonable doubt, he is entitled to an acquittal 

and you must find him not guilty.” 

The jury was also given CALCRIM No. 222. In part, this instruction read, “You 

must use only the evidence that was presented in this courtroom. ‘Evidence’ is the sworn 

testimony of witnesses, the exhibits admitted into evidence, and anything else I told you 

to consider as evidence.” 

On appeal, Vetter contends that CALCRIM No. 220’s definition of reasonable 

doubt violated his due process right to have his guilt determined beyond a reasonable 

doubt. He argues that the instruction “you must impartially compare and consider all the 

evidence that was received through the entire trial” improperly limited the jury’s 

determination of reasonable doubt to the evidence received at trial and precluded it from 

considering the absence of evidence. Specifically in this case, there was no surveillance 

videotape of him reentering Wal-Mart after he went to his truck and smoked a cigarette. 

The video could have confirmed the prosecution witnesses’ testimony that he reentered 
10.

the store without the items he had just purchased or, on the contrary, showed that he was 

carrying two full shopping bags as he claimed. 

Our court has considered this claim before. In People v. Zavala (2008) 168 

Cal.App.4th 772, 780 (Zavala), the defendant argued that “CALCRIM No. 220 

impermissibly precluded the jury from considering lack of evidence on the issue of proof

beyond a reasonable doubt.” We rejected the argument, observing that four recent 

published opinions had also rejected the argument. (Id. at pp. 780-781, citing People v. 

Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Flores (2007) 153 

Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-

1510 (Westbrooks); People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)

In Westbrooks, supra, 151 Cal.App.4th at pages 1505-1506, the defendant

Westbrooks similarly argued that CALCRIM No. 220 “improperly ‘limited the jury’s 

determination of reasonable doubt to the evidence received at trial and precluded it from 

considering the lack of physical evidence tying [him] to the offense ....’” The Court of 

Appeal concluded that the instruction did not violate Westbrooks’s due process rights, 

explaining:

“CALCRIM No. 220 ... merely instructs the jury that it must consider only 

the evidence presented at trial in determining whether the People have met 

their burden of proof. In other words, this instruction informs the jury that 

the People may not meet their burden of proof based on evidence other than 

that offered at trial. The instruction does not tell the jury that it may not 

consider any perceived lack of evidence in determining whether there is a 

reasonable doubt as to a defendant’s guilt. Further, the remainder of the 

instructions clearly conveyed to the jury the notion that the People had the 

burden of proving Westbrooks’s guilt beyond a reasonable doubt and that 

the jury was required to determine whether the People had met their burden 

of proving all of the facts essential to establishing his guilt.” (Westbrooks, 

supra, 151 Cal.App.4th at p. 1509.) 

We agree with the analysis of Westbrooks. Vetter acknowledges that the case law 

is against him, but urges us to reconsider. We are not persuaded either that the cases cited 

were wrongly decided or that the circumstances of this case call for a different analysis. 
11.

Accordingly, we reject Vetter’s claim that CALCRIM No. 220 improperly instructed the 

jury on reasonable doubt. (Zavala, supra, 168 Cal.App.4th at p. 781.) 

II. Imposition of middle term for burglary conviction

A. Background

The probation officer recommended the upper term of three years for count 1, 

burglary. The officer took into consideration Vetter’s criminal record, his prior 

unsatisfactory performance on probation, and the fact that he was on probation at the time 

he committed the current offense. The officer identified no circumstances in mitigation. 

At the sentencing hearing, the trial court announced its inclination to impose the 

upper term for count 1. The court stated that the manner in which the theft was 

committed indicated “planning and criminal sophistication.” The court described the 

offense as follows: 

“The defendant brought with him a list of items which he then entered the 

store and purchased to enable him to use those items to steal from the store. 

He then purchased the items, allowing him to have the receipt to first [cover

up] and hide the item[s] of his theft, and secondly, to allow him to recover 

money for the purchased items by entering in a third time the store with the 

intent to defraud the store thereby indicating actual three entries, which 

would have been three separate burglaries, so that he could return the first 

set of items, retrieve the money for them, and still retain the second set of 

items that were stolen.” 

The court also noted that Vetter had numerous prior convictions, the current 

offense was his sixth offense in eight years, and he was on probation at the time he 

committed the current offense. Vetter had been granted probation twice and each time he 

violated probation with new criminal conduct. The only mitigating factor the court found 

was that the amount of the theft was only about $80. It appeared to the court that this 

single mitigating factor was heavily outweighed by the aggravating factors. 

After stating its tentative ruling, the court invited argument from counsel. Vetter’s 

attorney again pointed out that the amount of the theft was very small; in other

circumstances, it would be a petty theft case. He argued that Vetter’s criminal record, 
12.

while lengthy, did not indicate a predilection for theft or a tendency toward dishonesty. 

Vetter had drug offenses and the incident “when he was playing with fireworks.” The 

court then observed that the current offense was substantially less serious than the 

possession of an explosive device, so “obviously the criminal conduct is going down, not 

escalating.” Vetter’s attorney reminded the court that Vetter lost all his possessions in a 

house fire, a circumstance that perhaps made his actions more understandable. The court 

agreed that Vetter’s circumstances “would be mitigating.”

The prosecutor recommended the middle term based on the small value of the 

items stolen. 

The court decided to deviate from its tentative ruling, explaining:

“I do think [defense counsel] brought up some mitigating factors I hadn’t 

fully considered in terms of the residential fire making Mr. Vetter homeless, 

and it would appear to be a theft of largely shoes and clothing, although 

there was a [planner] and some other items that didn’t appear to me to be 

within that category, and the fact that the criminal conduct does appear to 

be declining in seriousness as opposed to the previous convictions he’s 

had.” 

The court imposed the middle term of two years for count 1. 

B. Analysis

On appeal, Vetter contends the trial court committed reversible error in sentencing 

Vetter to the middle term because it emphasized an aggravating factor that was not 

supported by the evidence. In particular, Vetter argues the court’s statement that he 

committed “three separate burglaries” was not supported by any evidence or argument 

presented at trial. 

Section 1170, subdivision (b), provides, “When a judgment of imprisonment is to 

be imposed and the statute specifies three possible terms, the choice of the appropriate 

term shall rest within the sound discretion of the court.” 

We review the trial court’s sentencing decision for abuse of discretion. (People v. 

Sandoval (2007) 41 Cal.4th 825, 847.) “The trial court’s sentencing discretion must be 
13.

exercised in a manner that is not arbitrary and capricious, that is consistent with the letter 

and spirit of the law, and that is based upon an ‘individualized consideration of the 

offense, the offender, and the public interest.’ [Citation.] [A] trial court will abuse its 

discretion ... if it relies upon circumstances that are not relevant to the decision or that 

otherwise constitute an improper basis for decision. [Citations.]” (Ibid.) 

In his opening brief, Vetter discusses case law on residential burglary and urges us 

not to consider each entry into a commercial building as a separate burglary offense. He 

also points out that no evidence was presented showing Vetter intended to enter the WalMart a third time in order to return items for money. While we agree with Vetter that any 

assumption he intended to return the originally purchased items would be speculation, we 

are not convinced reversible error occurred in this case. 

First, we do not read the trial court’s statement about “three separate burglaries” as 

demonstrating that the court relied on a belief that Vetter may have committed three 

offenses as an aggravating factor. Rather, taken in context, we understand the court 

simply to be describing a theft that, as it said, required some “planning and criminal 

sophistication.” This was not an impulsive act, but a crime that took some thought and

time to execute. 

Second, “complaints about the manner in which the trial court exercises its 

sentencing discretion and articulates its supporting reasons cannot be raised for the first 

time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) Here, Vetter’s attorney did 

not object to the court’s reference to “three separate burglaries,” although he was invited 

to argue his position on sentencing. As a result, this contention has been forfeited. 

Third, a trial court’s sentencing error does not require reversal and remand if the 

error does not cause prejudice, “i.e., it is ‘not reasonably probable that a more favorable 

sentence would have been imposed in the absence of the error.’” (People v. Scott, supra, 

9 Cal.4th at p. 355.) In this case, after hearing from Vetter’s counsel, the trial court 

imposed the middle term for count 1 instead of the upper term, which had been its 
14.

tentative ruling. Assuming for the sake of argument that the trial court improperly

believed Vetter’s conduct constituted three separate burglaries and considered this an 

aggravating factor, it is not reasonably probable that a more favorable sentence would 

have been imposed in the absence of the assumed error. Vetter had many prior 

convictions, spent years in prison, and was on probation at the time he committed the 

current offense. The probation officer recommended the upper term, but the trial court 

took into consideration the mitigating factors that Vetter was homeless and stole items he 

needed to impose the middle term. In light of Vetter’s lengthy criminal history and poor 

performance on probation, we are confident the trial court would still have imposed the 

middle term in the absence of any improper consideration that Vetter may have intended 

to commit “three separate burglaries.” 

Based on the foregoing, we conclude there was no reversible error in the trial 

court’s imposition of a two-year term for count 1, burglary.

III. Fees not orally pronounced by trial court 

At the sentencing hearing, the trial court also imposed a restitution fine, a court 

operations fee, a court facilities funding assessment, and booking and release fees. The 

court did not mention an assessment of $450 for preparation of a presentence 

investigation report or an assessment not to exceed $20 per month for the cost of 

probation services. These assessments, however, appear in the clerk’s minute order.5 

The People concede that, where there is a discrepancy between the oral 

pronouncement of the sentence and a minute order of the proceedings, the oral 

pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385

(Zackery).) “The clerk cannot supplement the judgment the court actually pronounced by 

 

5Somewhat confusingly, these fees are listed on what appears to be the fourth page 

of a four-page minute order dated April 11, 2012, but at the top right corner, it reads,

“Page 2 of 4.” The second page of the minute order is designated “Page 2 of 2,” and the 

third page is designated “Page 2 of 3.” 
15.

adding a provision to the minute order and the abstract of judgment.” (Id. at pp. 387-

388.) 

In Zackery, supra, 147 Cal.App.4th at page 387, the minute order for a sentencing 

hearing included a number of fines that had not been imposed orally by the trial judge at 

the hearing. The Court of Appeal struck from the minute order and abstract of judgment 

all of the fines that had not been announced by the court. (Id. at pp. 388-389.) Similarly, 

in this case, we will direct the trial court to amend the minute order by striking the 

assessments of (1) $450 for preparation of the presentence investigation report and 

(2) amount not to exceed $20 per month for the cost of probation services. 

The People suggest we remand to the trial court to reconsider whether to impose 

these assessments. We decline to do so. In Zackery, supra, 147 Cal.App.4th at page 389, 

the Court of Appeal remanded the case to the trial court to determine whether to impose 

two (but not all) of the fines it had struck. The reason for remand with respect to those

particular fines was that they were mandatory restitution fines under section 1202.4. (Id. 

at pp. 388-389 [restitution fines must be imposed unless trial court finds compelling and 

extraordinary reasons not to do so and states those reasons on record].) Here, the 

assessments for probation costs are not mandatory, so there is no reason to remand for 

reconsideration. 

IV. Ability to pay booking fees

The trial court imposed a booking fee of $112 and another release fee of $25. 

Vetter challenges the trial court’s imposition of these fees without first determining 

whether he was able to pay the fees.6 He admits that he did not raise any objection to the 

fees with the trial court, but he argues that he has not forfeited the issue.

 

6Vetter makes the same argument with respect to the fees for the presentence 

investigative probation report and for probation services. We have determined that those 

fees must be deleted from the minute order because the trial court did not orally impose 

those fees at the sentencing hearing. 
16.

After the parties completed their briefing, however, the California Supreme Court

decided the forfeiture issue against Vetter. In People v. McCullough (2013) 56 Cal.4th 

589, 591, the court held, “[A] defendant who fails to contest the booking fee when the 

court imposes it forfeits the right to challenge it on appeal.” Accordingly, Vetter has 

forfeited this argument. 

V. Sentencing enhancement for prior prison term

On the second day of trial outside the presence of the jury, the court discussed with 

Vetter his right to remain silent as well as his right to testify. The court explained that if 

he chose to testify, he could be questioned about his prior felony convictions related to 

possession of a destructive device, which the court determined were crimes of moral 

turpitude. At that point, Vetter agreed to “enter into a conditional admission of his prison 

prior ....” The court stated: “As I understood the conversation, everybody is in 

agreement that while there’s four offenses,[

7

] they constitute a single prison term. In 

other words, there were four convictions, but the terms were served at the same time, so it 

constitutes one prison prior.” Vetter’s attorney and the prosecutor agreed there was only 

one prior prison term. 

At the sentencing hearing, however, the court imposed two, one-year 

enhancements for prior prison terms, resulting in a total term of four years. The People 

concede this was an error. Since the parties agreed that Vetter served only one prior 

prison term,

8 he was subject to only one sentencing enhancement under section 667.5, 

subdivision (b). Consequently, we will strike one of the two, one-year sentencing 

enhancements. 

 

7

In addition to the two convictions related to possession of a destructive device, 

the information alleged that Vetter had two convictions for drug-related offenses, for a 

total of four convictions. 

8We also observe that the information alleged only “a term was served” for 

Vetter’s prior convictions. 
17.

The correct term is three years—the middle term of two years plus one year for one 

prior prison term. The trial court, in its discretion, may commit Vetter to county jail for 

the full term or “suspend execution of a concluding portion of the term selected,” during 

which time Vetter would be under mandatory supervision. (§ 1170, subd. (h)(5)(B)(i).) 

We will remand the case to allow the court to exercise its discretion on this matter. 

VI. Ineffective assistance of counsel claim

Finally, Vetter argues he was denied effective assistance of counsel based on 

various omissions by defense counsel. He complains that his attorney (1) failed to object 

to the court’s characterization of his conduct as indicating “three separate burglaries,” 

(2) failed to object to the imposition of fines and fees without a determination of Vetter’s 

ability to pay, and (3) failed to request a limiting instruction with respect to the evidence 

that Vetter had prior felony convictions. 

To prevail on an ineffective assistance of counsel claim, Vetter must show both 

that his attorney’s performance was deficient and that the deficiency caused him 

prejudice. (People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.) When the reasons for 

an attorney’s decisions are not apparent from the record, “‘we will not assume inadequacy 

of representation unless counsel had no conceivable tactical purpose.’ [Citation.]” 

(People v. Hines (1997) 15 Cal.4th 997, 1064.) 

Vetter’s claim that his attorney should have objected to the court’s statement 

regarding “three separate burglaries” fails for lack of prejudice. As discussed above, we 

have concluded that it is not reasonably probable a more favorable sentence would have 

been imposed absent the consideration of “three separate burglaries.” Therefore, defense 

counsel’s failure to object at the sentencing hearing did not prejudice Vetter. 

With respect to the claim that Vetter’s attorney should have objected to the 

imposition of fees without a determination of ability to pay, the record does not disclose 

why his attorney did not object. For example, it may be that his attorney knew Vetter, in 

fact, had the ability to pay. On this record, we cannot say the failure to object constituted 
18.

inadequate representation. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-277 

[where record sheds no light on why counsel acted in manner challenged, claim of 

ineffective assistance of counsel should be denied on direct appeal; claim is generally 

more appropriately litigated in habeas corpus proceeding].) Further, the probation 

officer’s report noted that Vetter’s physical and mental health were good, and he worked 

as a contractor, although he had not been able to find work “due to the economic 

climate.” The fees Vetter now challenges amount to $137. Since he is physically able to 

work, it is not reasonably probable that the trial court would have found him unable to 

pay $137 if his attorney had objected and raised the issue of ability to pay. In other 

words, Vetter has not demonstrated prejudice.

Finally, we consider defense counsel’s failure to request a limiting instruction 

regarding Vetter’s prior felony convictions. Vetter points out that, before he entered his 

conditional admission of two prior convictions related to possession of a destructive 

device, his attorney indicated his belief that a limiting instruction would be given. 

Vetter’s attorney said, “The jury instructions, I believe, will instruct that you take the fact 

of those felony convictions only to judge your veracity or your truthfulness and not to 

judge whether or not you were more likely than not to have committed a new crime just 

because you were convicted before.” No limiting instruction was given to the jury, 

however, which appears to have been an oversight on the part of both parties. 

During his closing argument, Vetter’s attorney referred to Vetter’s convictions for 

“incidents involving explosives,” noting that he had done his time, paid his debt to 

society, and “successfully fulfilled his parole ....” He then told the jury: “I believe the 

jury instructions will tell you you can use the fact of that conviction to decide whether or 

not Mr. Vetter is telling the truth, but you can’t use it to decide he is more likely to have 

committed this crime just because he was previously convicted of a felony. I mean, it 

doesn’t necessarily make him a bad person and more likely to commit a crime because 

he’s been convicted before, but you can use that to judge his credibility.” 
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In his rebuttal argument, the prosecutor argued that Vetter had a motive to lie but 

also suggested that prior convictions were not a proper reason to find him guilty of the 

current charges. He said: “Who does have the motive to lie here? Mr. Vetter. He is the 

one trying to avoid a conviction. He’s been convicted before. He’s been to prison. I 

don’t hold that against him and I hope that you won’t either. But he’s been locked up. 

He does not want to be locked up again.” (Italics added.) 

The People argue that, despite absence of a limiting instruction from the court, the 

record does not lend itself to a reasonable probability that the jury misused evidence of 

Vetter’s criminal record to find him guilty. We agree. The jury learned that Vetter had 

been convicted of possession of a destructive device and possession of materials with the 

intent to make an explosive or destructive device. Vetter explained that he had an interest 

in fireworks and his “hobby” resulted in an explosion that damaged his hand. These 

crimes were not particularly likely to inflame the jury, nor were they similar to the crimes 

he was on trial for, namely, burglary and theft. The evidence against Vetter was strong. 

Two loss-prevention agents testified that they observed Vetter steal from Wal-Mart. A 

police officer testified that Vetter’s girlfriend had Wal-Mart merchandise in her purse, 

and she said Vetter put it there. Under these circumstances, we do not believe Vetter’s 

prior convictions, which had nothing to do with theft or dishonesty, would have been used 

improperly by the jury to convict him. Stated differently, we conclude it is not reasonably 

probable that the jury would have reached a more favorable result had a limiting 

instruction been given. Again, Vetter’s claim of ineffective assistance of counsel fails for 

lack of prejudice.

DISPOSITION

The judgment is modified to strike one sentencing enhancement under 

section 667.5, subdivision (b). As modified, the judgment is affirmed.
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The trial court is directed to prepare an amended minute order for April 11, 2012, 

deleting the assessments of $450 for preparation of the presentence investigation report 

and an amount not to exceed $20 per month for the cost of probation services. 

The case is remanded to the trial court for consideration of how the three-year term 

should be served pursuant to section 1170, subdivision (h)(5). The trial court will prepare 

an amended abstract of judgment in accordance with this opinion and forward it to 

appropriate prison authorities. 

_____________________

Hoff, J.*

WE CONCUR:

_____________________

 Cornell, Acting P.J.

_____________________

 Detjen, J.

 

*

Judge of the Superior Court of Fresno County, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.