1 Filed 2/11/14 P. v. Cael CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent, A135248
v. (San Francisco County Super. Ct. No. 216808) JEVON CAEL,
Defendant and Appellant.

___________________ __________________/

A jury convicted appellant Jevon Cael of two counts of unlawful possession of a firearm (former Pen. Code, § 12021, su bd. (g)(2) & (c)(1) (Counts I and II)), 1 and contempt of court regarding a protective order (§ 166, su bd. (c)(1) (Count III)). At the sentencing hearing, the trial court place d appellant on probation and imposed, among other things, a $135 Criminal Justice Admini stration Fee pursuant to Government Code section 29550.2 ( booking fee) and a $200 restitution fine pursuant to sec tion 1202.4. The minute order and probati on order, however, reflect a $240 restitution fine. On appeal, appellant contends: (1) the cour t erred by declining to give a pinpoint instruction on constructive possession of a fir earm; (2) the court erred by imposing the

1 Unless otherwise noted, all further stat utory references are to the Penal Code.2 booking fee; and (3) the minute order and pr obation order should be modified to reflect the restitution fine the court orally im posed at the sentencing hearing. We modify the sentencing minute orde r and probation order to impose a $200 restitution fine pursuant to section 1202.4. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND Appellant is the father of two of Sara Thomas’s children. A July 2011 protective order prevented appellant from coming within 100 yards of Thomas or her house. In October 2011, appellant spent a few nights at Thomas’s house. Appellant and Thomas were not getting along a nd they avoided each other when th ey were at Thomas’s house. On October 13, 2011, Thomas and appellant got into an argument. “For a brief second[,]” Thomas saw appellant with a small handgun and sh e felt threatened. On the evening of October 14, 2011, appellant slept in the children’s bedroom at the front of the house; Thomas and the children slept in he r bedroom. Thomas referred to the front bedroom as her children’s room, but he r children did not sleep there. On the morning of October 15, 2011, appellant was sleeping in the front bedroom. Thomas called the police because she wanted appellant “out of [her] house” and because she was tired of not getting al ong with him. San Francisc o police officers went to Thomas’s home and found appe llant sleeping in the front bedroom. Thomas told the officers there was a gun in the bedroom and allo wed the officers to search it. They did and found a loaded gun under the mattress of the bed wh ere appellant had been sleeping. After being Mirandized , appellant admitted he should not have been at Thomas’s house and that he had a loaded “gun in the house . . . for protection.” 2 He said he put the gun under his mattress before he went to sleep. A jury convicted appellant of Co unts I, II, and III. The court suspended imposition of sentence on Coun t II, stayed Counts I and III, and placed appellant on probation for three years. As a condition of probation, appellant was to spend one year in county jail, with credit for tim e served. At the sentencing h earing, the trial court imposed

2 The court admitted a record ing of the interview into ev idence and the prosecutor played the recordin g for the jury.3 various fines and fees, includi ng the booking fee and a $200 restitution fine pursuant to section 1202.4. The court also imposed , but stayed, a $200 probation revocation restitution fine (§ 1202.44). Defense counsel did not object to the imposition of the fines and fees. The court ordered appellant to repo rt to the Hall of Justice upon his release from custody to “make arrangements to pay your fine, penalties, and assessments. [¶] If you don’t have any money, they work with you . But you have to go there anyway.” The minute order and proba tion order reflect a $2 40 restitution fine.
DISCUSSION
I. The Court Did Not Err by Refusing th e Proposed Pinpoint Instruction and Any Error Was Harmless Appellant contends the erred by refu sing a pinpoint inst ruction “defining constructive possession and explaining that mere proximity to contraband, such as a gun, does not establish possession of that item.” At trial, defense counsel requested the following pinpoint instruction “further defining possession” of the firearm alleged in Counts I and II: “There are two kinds of possession: actual possession and constructive possession. [¶] Actual possession requires that a person knowingly exercise direct phys ical control over a thing. [¶] Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] One pe rson may have possession alone , or two or more persons together may share actual or constructive possession. People v. Sifuentes (2011) 195 Cal.App.4th 1410. [¶] Cons tructive possession requires that a person knowingly exercised a right to control the prohibited item, either directly or through another person. Mere proximity to the weapon, standing alone , is not sufficient evidence of possession. [¶] People v. Zyduck (1969) 270 Cal.App.2d 334. [¶] Domi nion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of th ese elements.” The People objected to the proposed instruction.4 The court refused the proposed pinpoint instruction. It explained judges are instructed to “use the CALC RIM instructions . . . unless there is some extraordinary reason not to . . . . The CALCRIM instructions adequately define possession.” The court determined the proposed pinpoin t instruction on possession did “not really add much, and it could likely confuse the jury, and it gives an unnecessary emphasis by having an extra instruction on possession to ju st one aspect of the element of those crimes.” The court instructed th e jury with CALCRIM No. 2511, entitled “Possession of Firearm by Person Prohibited Due to Conviction [,]” which provided in relevant part: The defendant is charged in Count 2 with unlawfully possessing a fi rearm in violation of . . . section 12021(c)(l). [¶] To prove that the de fendant is guilty of th is crime, the People must prove that: [¶] 1. The de fendant possessed a firearm; [¶] 2. The defendant knew that he possessed the firearm. . . . Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch so mething to possess it. It is enough if the person has control over it or th e right to control it, either personally or through another person.” The court also in structed the jury w ith CALCRIM No. 2512, “Possession of Firearm by Person Prohibited by Court Order,” which provided in relevant part, “The defendant is charged in Count 1 with unlawfully po ssessing a firearm in violation of Penal Code section 12021(g)( 2)” and contained identical language about possession. “A trial court must instru ct the jury, even without a request, on all general principles of law that are ‘“closely and openly connected to the facts and that are necessary for the jury's understa nding of the case.” [Citation. ] In addition, “a defendant has a right to an instruction that pinpoints the th eory of the defense. . . .”’ [Citation.] The court may, however, ‘properly refuse an in struction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not sup ported by substantial evidence [citation].’ [Citation.]” ( People v. Burney (2009) 47 Cal.4th 203, 246.) We conclude the court did not err by refu sing the proposed pinpo int instruction. First, the court properly inst ructed the jury pursuant to CALCRIM Nos. 25 11 and 25125 that “[a] person does not have to actually ho ld or touch something to possess it. It is enough if the person has control over it or th e right to control it, either personally or through another person.” For this reason, the proposed pinpoint instruction was duplicative. “A trial court is not required to give pinpoint instru ctions that merely duplicate other instructions.” ( People v. Panah (2005) 35 Cal.4th 395, 486.) Assuming for the sake of argument the c ourt’s refusal to give the pinpoint instruction was erroneous , any error was harmless because the instructions sufficiently covered the topic of possession ( People v. Dieguez (2001) 89 Cal.App. 4th 266, 277) and because “it is not reasonably probable that had the jury been given [the] proposed pinpoint instruction, it woul d have come to any different conclusion in this case.” ( People v. Earp (1999) 20 Cal.4th 826, 887, citing People v. Watson (1956) 46 Cal.2d 818, 836-837.) As discussed above, the court properly instru cted the jury on the concepts of actual and constructive possession. Having receive d these instructions, “a reasonable juror would understand” these concepts. ( People v. Hughes (2002) 27 Cal.4th 287, 363 ( Hughes ).) “Any lingering doubt that we coul d have concerning a reasonable juror’s understanding of [possession] is dispelled by defense counsel ’s . . . closing argument” ( id. at p. 363) which “focused the jury’s attention” on the issue of possession ( People v. Hartsch (2010) 49 Cal.4th 472, 504) and “‘pinp ointed’ for the jury the defense theory” that appellant did not possess the gun. ( Hughes , supra, 27 Cal.4th at p. 363.) In closing argument, appellant’s counsel argued appellant was “innocent of all the charges and of gun possession because he did not own, he did not possess, the gun that was found” at Thomas’s home. Counsel clai med, “there’s absolute ly no evidence to show beyond a reasonable doubt that [appella nt] possessed the gun” because he did not exert “dominion and control” over it. In addition, counsel explained that “[m]ere proximity to an item does not mean it’s possessi on. Mere proximity of Mr. Cael to the gun, standing alone, is not sufficient evidence that he possessed it.” In finding appellant guilty of prohibited possessi on of a firearm in violation of former section 12021, subdivisions (g)(2) an d (c)(1), the jury rejected defe nse counsel’s arguments based on6 evidence that: (1) Thomas saw appellant with the gun; (2) the gun was found in the bed where appellant was sleeping; and (3) appellant admitted the gun was his and that he put it under the mattress of the bed where he sl ept. Appellant’s arguments regarding prejudice are unpersuasive.
II. Appellant Forfeited His Challenge to the Booking Fee and Cannot Establish Ineffective Assistance of Counsel Appellant argues the court erred by im posing a $135 booking fee pursuant to Government Code section 29550.2 without determining his ability to pay. Alternatively, he contends his counsel was ineffective for faili ng to object to the fee in the trial court. We conclude appellant forfeited his insuffi cient evidence claim by not objecting at sentencing ( People v. McCullough (2013) 56 Cal.4th 589) and his ineffective assistance claim fails because he has not established prejudice. To establish ineffective a ssistance of counsel, appe llant must show: (1) trial counsel’s representation fell below an objectiv e standard of reasonableness; and (2) but for counsel’s error, there is a reasonable probability he would have obt ained a more favorable result. ( Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Here, we need not determine whether co unsel’s performance was defi cient because appellant has not established prejudice. ( Id. at p. 697.) ““‘[If] the reco rd on appeal sh eds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provid e one, or unless there simply could be no satisfactory explanation,” the claim on appeal mu st be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriate ly decided in a habeas corpus proceeding. [Citations.]” ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 ( Mendoza Tello ).) Here, trial counsel was not asked to expl ain why she did not challenge the booking fee. Appellant seems to suggest that although the record is silent, th is is a case in which there “simply could be no sa tisfactory explanation.” ( Mendoza Tello, supra, 15 Cal.4th at p. 266.) We disagree. The record demo nstrates appellant, then 20 years old, had a7 place to live and a standing job offer to work for Vector Marketing when he was released from custody. In addition, appellant’s fa mily supported him financially. This information suggests trial counsel could have determined appellant had the ability to pay the booking fee, and that an objection on th e ground of inability to pay would have been futile. ( Mendoza Tello, supra, 15 Cal.4th at p. 266.) “Ab ility to pay does not necessarily require existing employment or cash on hand” ( People v. Staley (1992) 10 Cal.App.4th 782, 785) and the trial court may consider th e defendant’s ability to pay in the future. ( People v. Hennessey (1995) 37 Cal.App.4th 1830, 18 37.) In light of the minimal amount of the booking fee and the prospect of appellant’s future earnings, we cannot fault defense counsel for not asserting that appellant was unable to pay the booking fee. We also reject appellant’s claim — based on Southern Union Co. v. U.S. (2012) ___ U.S. ___ [132 S.Ct. 2344] ( Southern Union ) — that he was entitled to a jury determination of his ability to pa y and the amount incurred. In Southern Union , the Supreme Court held the Sixth Amendment right to a jury applies to “sentences of criminal fines.” ( Id . at p. 2349.) There, the viola tions at issue were punishable by, among other things, a fine of up to $50,000 pe r day of violation. A jury found Southern Union violated the law, but made no specific factual finding as to the number of days it was in violation. ( Ibid. ) The district court imposed an aggregate fine of $38.1 million, concluding from the “‘content and context of th e verdict all together’ that the jury found a 762-day violation.” ( Id. at p. 2346.) The United States Supreme Court held the district court’s factual finding as to the number of days Southern Union committed the crime violated Southern Union’s Sixth Amendmen t right to a jury determination. ( Id . at p. 2347.) In reaching its decision, the Supreme Co urt held that “[c]riminal fines, like . . . other forms of punishment, are penalties infl icted by the sovereign for the commission of offenses.” ( Ibid. ) Southern Union is distinguishable. Here, the booking fee is not a penalty “inflicted by the sovereign for th e commission of offenses.” ( Southern Union Co., supra, 132 S.Ct. at p. 2347.) Rather, the fee impos ed pursuant to Government Code section 29550.2 is administrative in nature, created to address a fiscal cr isis in California “by8 allowing a county to rec over costs incurred in booking or otherwise processing an arrested person who thereafter is convicted.” ( People v. Rivera (1998) 65 Cal.App.4th 705, 707-708 ( Rivera ).) Government Code section 295 50.2 fees are imposed “not as retribution for what the convicted criminal has done to a victim and/or to society, but for his or her use of jail services as a result of criminal behavior.” ( Rivera, supra, 65 Cal.App.4th at p. 711.) Moreover, Government Code section 29550.2 fees are limited to the actual costs incurred by the county. ( Rivera, supra, 65 Cal.App.4th at p. 708.) Thus, unlike the criminal penalties imposed in Southern Union , Government Code section 29550.2 fees are “assessed against all convicted offenders who have the ability to pay, without regard to the nature or se verity of their respective offenses.” ( Rivera, supra, 65 Cal.App.4th at p. 708.) Ac cordingly, Government Code s ection 29550.2 fees are not a penalty inflicted for the commission of crimes. ( Rivera, supra, at pp. 708, 711; see also People v. Kramis (2012) 209 Cal.App.4th 346, 352 [ Southern Union did not affect the trial court’s discretion to se lect an appropriate restituti on fine, in part because, by imposing the mandated fees, “[t]he trial cour t did not make any factual findings that increased” the amount of the administrative fe es, “beyond what the jury’s verdict—the fact of the conviction—allowed”].) We co nclude appellant was not entitled to a jury determination regarding his ability to pay th e booking fee, or the amount of costs incurred by the county.
III. The Minute Order and Pro bation Order Must Be Corrected to Reflect the $200 Restitution Fine the Court Orally Imposed at the Sentencing Hearing At the sentencing hearing, the court im posed a $200 restitution fine (§ 1202.4). The clerk’s minute order and the probation order however, reflect a $240 restitution fine. Appellant contends the minute and probation order should be corrected to reflect a $200 restitution fine and the People concede the is sue. We accept the People’s concession. “When there is a discrepancy between the mi nute order and the oral pronouncement of judgment, the oral pron ouncement controls.” ( People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073; People v. Farell (2002) 28 Cal.4th 381, 384, fn . 2.) As a result, the minute9 order and probation order must be modified to reflect the $200 restitution fine orally imposed by the court. ( People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.)
DISPOSITION The judgment is modified to impose a $200 restitution fine under Penal Code section 1202.4. The trial court is directed to prepare a new sentencing minute order and probation order, and, if appropriate, a new ab stract of judgment and to forward the new abstract of judgment to the Department of Corrections and Rehabilita tion. As modified, the judgment is affirmed.

_ ____________ ____________ Jones, P.J.

We concur:

_____________ ____________ Needham, J.

_____________ ____________ Bruiniers, J.