Filed 11/22/13 P. v. Ugiley CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMA UGILEY,

Defendant and Appellant.

 B244467

 (Los Angeles County

 Super. Ct. No. LA 070247)

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan 

Schneider, Judge. Affirmed as modified.

Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and 

Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

A jury convicted appellant Lama Ugiley of vandalism causing over $400 in 

damage (Pen. Code, § 594, subds. (a), (b)(1))

1 and grand theft of personal property 

exceeding $950 in value (§ 487, subd. (a)). The court sentenced her to 180 days in 

county jail but suspended imposition of sentence and placed her on probation for a period 

of three years. She was ordered to make restitution in the stipulated sum of $24,845. The

court also determined appellant should pay $8,694 in attorney fees pursuant to section 

987.8, subdivision (b). Appellant argues the trial court erred in (1) instructing the jury 

with CALCRIM No. 318, (2) twice imposing a fine under section 1202.5, (3) ordering 

her to pay attorney fees without sufficient evidence of her present ability to pay, and (4) 

prohibiting her from testifying in her defense at the attorney fees hearing. We affirm

with one modification.

STATEMENT OF FACTS

1. Prosecution Evidence

Appellant rented an apartment in North Hollywood in a complex called Madison 

Toluca Luxury Apartment Homes. In November 2011, appellant did not pay her rent, 

and the business manager for the apartment complex served her with a three-day notice to 

pay rent or quit. After appellant did not pay in response to the notice, the landlord

prevailed in an unlawful detainer action to evict appellant. The landlord obtained a writ 

of possession dated January 3, 2012. On January 11, 2012, appellant called the business 

manager, Teresa Cormier, and asked if she could pay her past due rent and stay in the 

apartment. Cormier refused, and after appellant “went back and forth” with Cormier 

about it, Cormier told appellant she would have to ask Cormier’s supervisor. Appellant 

said that she would “fuck” up the apartment so that no one could live in it for a year if 

they did not let her stay. After Cormier served appellant with the three-day notice to pay 

or quit, appellant threatened to kill Cormier. Appellant also repeatedly called Cormier a 

“whore” and a “bitch,” and told her, “You fucking bitch. I know people.” James Villa 

 

1 All further undesignated statutory references are to the Penal Code.
3

was the investment manager for appellant’s landlord. Appellant called him and asked if 

she could pay to stay in the apartment. He refused. Appellant told Villa they “were 

going to regret evicting her” and she was going to damage the apartment. She said she 

did not care if she got into trouble because she was leaving the country.

On January 13, 2012, Cormier saw a moving truck outside appellant’s apartment, 

and she heard loud banging noises coming from appellant’s apartment for approximately 

10 minutes that morning. Fausto Villatoro was a security guard the landlord hired to 

protect Cormier after appellant threatened her. He heard banging noises coming from 

appellant’s apartment on three different days. Nelson Gonzalez, the maintenance person 

at the apartment complex, also heard loud banging noises coming from appellant’s 

apartment for three to four minutes that day. Gonzalez saw the moving truck as well.

After appellant had vacated the apartment, Cormier entered with the sheriff’s 

department and found the apartment heavily damaged. The apartment smelled like dog 

or cat urine and excrement, the carpet had black stains, the washer, dryer, refrigerator, 

stove, microwave, and dishwasher were missing, there were holes in multiple walls, the 

cabinets and granite countertops were broken, smoke detectors were missing, there was 

trash throughout the apartment, and fixtures were broken. A contractor submitted a bid 

of $35,455 to repair the apartment.

2. Defense Evidence

At the time of trial, appellant was self-employed selling furniture online through 

her company, Discount Furniture Inc. She worked from home. When she applied for her 

apartment in North Hollywood, she stated she sold cosmetics and earned approximately 

$200,000 per year.

When appellant was being evicted from her apartment, she rented a townhouse 

and obtained the key for it on January 4, 2012. She lied on the rental application for her 

new townhouse when she said she had never been evicted and identified her boyfriend as 

her landlord. She lied because she believed her old landlord was trying to set her up, and 

she wanted the townhouse as soon as possible. She moved everything on January 13, 

2012, except her “work[] station” -- her computers and printers. She left her work station 
4

because she did not have an Internet connection in her townhouse until February. She 

left the apartment undamaged and all appliances still there.

Lee Murreta is the mover who helped appellant move. He moved furniture and 

boxes for her, but no appliances. He did not see any damage to the apartment when he 

moved her things. Mohammed Isa is appellant’s friend and Samy Alujiely is her brother. 

They also helped her move. They did not take any appliances and did not see any 

damage to her apartment.

Appellant returned to her old apartment on January 17, 2012, to use her work 

station. When she arrived, she found the apartment “destroyed” and her work station 

missing. She reported the vandalism and theft to the police.

DISCUSSION

1. CALCRIM No. 318

The court instructed the jury with CALCRIM No. 318 as follows: “You have 

heard evidence of statements that a witness made before the trial. If you decide that the 

witness made those statements, you may use those statements in two ways: [¶] 1. To 

evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As 

evidence that the information in those earlier statements is true.” Appellant contends this 

instruction relieved the prosecution of its burden of proof and violated her due process 

and fair trial rights because it “allows for the improper presumption that a witness’s 

unsworn out-of-court statements are both true and deserving of greater belief than 

statements made in court under penalty of perjury.” Appellant points to evidence that 

Villa made an out-of-court statement that appellant said she would damage the apartment 

if evicted. This was consistent with Villa’s in-court testimony that appellant told him she 

would damage the apartment. Appellant argues CALCRIM No. 318 “proclaimed the 

truth of Villa’s out-of-court statement,” gave weight to Villa’s in-court statement because 

it was consistent, and precluded the jury from considering further whether Villa’s 

statements were false. We disagree that this instruction was improper.

Preliminarily, we note appellant did not object to this instruction at trial. We will 

nevertheless address the merits of her contention because she argues the claimed error 
5

affected her “substantial rights.” (§ 1259 [“The appellate court may . . . review any 

instruction given, . . . even though no objection was made thereto in the lower court, if 

the substantial rights of the defendant were affected thereby.”]; People v. Solorzano

(2007) 153 Cal.App.4th 1026, 1038.) We conduct an independent review of issues 

relating to instructions. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)

Turning to the merits, we are not persuaded by appellant’s argument. The court 

rejected the same argument regarding CALCRIM No. 318 in People v. Hudson (2009) 

175 Cal.App.4th 1025 (Hudson). We agree with the reasoning in Hudson. By instructing 

the jurors that they “may” use a witness’s out-of-court statements “if” they decide the 

witness made those statements, the instruction does not require the jurors to credit the 

out-of-court statements. (Id. at p. 1028.) Like the Hudson court, we therefore reject the 

argument that the instruction lessens the prosecution’s burden of proof by compelling the 

jurors to accept out-of-court statements as true. (Ibid.) Moreover, we determine the

correctness of the instruction by looking at the instructions as a whole, not just particular 

instructions or parts of them. (Ibid.) Here, the instructions as a whole properly informed 

the jury of its prerogative to determine that Villa’s statements were false while

appellant’s were true. (Id. at p. 1029.) Using CALCRIM No. 220, the court instructed 

that the prosecution had to prove its case beyond a reasonable doubt, and in deciding 

whether it had done so, the jurors had to “impartially compare and consider all the 

evidence that was received throughout the entire trial.” Further, the court instructed the 

jurors with CALCRIM No. 302 that if there was a conflict in the evidence, they “must 

decide what evidence, if any, to believe.” And specifically with respect to evidence of 

appellant’s out-of-court statements, the court instructed them with CALCRIM No. 358 to 

“[c]onsider with caution any statement made by the defendant tending to show her guilt

unless the statement was written or otherwise recorded.” Thus, far from telling the jurors 

to credit Villa’s statements, the instructions expressly told the jurors to consider with 

caution Villa’s testimony that appellant said she would damage the apartment. The 

instructions as a whole fully allowed the jury to reject Villa’s statements and “did not 

lessen the prosecution’s burden of proof by elevating out-of-court statements to 
6

unquestionable reliability.” (Hudson, supra, 175 Cal.App.4th at p. 1029.) The trial court 

did not err in giving CALCRIM No. 318.

2. Section 1202.5 Fine and Additional Assessments

Appellant contends the trial court erroneously imposed two $10 crime prevention 

fines under section 1202.5, one for each offense of which she was convicted. Respondent 

concedes the court may impose the crime prevention fine only once in a case, and we 

agree. (See, e.g., People v. Crittle (2007) 154 Cal.App.4th 368, 371 [“[W]e agree with 

defendant that one of the fines was unauthorized because the crime prevention fine can be 

imposed only once ‘[i]n any case.’”].)

As respondent points out, the court stated at the sentencing hearing it was 

imposing the fine “for both counts,” but the minute order of the hearing states the fine 

was imposed only once, and there is no abstract of judgment because the court placed 

appellant on probation. The record of the oral pronouncement of the court generally

controls over the clerk’s minute order when the two conflict. (People v. Farell (2002) 28 

Cal.4th 381, 384, fn. 2.) But in this case, the clerk’s minute order is correct under the 

law, and the oral pronouncement is incorrect. Under these circumstances, we will deem 

the minute order to prevail over the transcript. (People v. Cleveland (2004) 32 Cal.4th 

704, 768.) The erroneous imposition of a second fine under section 1202.5 in the 

reporter’s transcript is of no effect. (Ibid.)

While respondent concedes the crime prevention fine should not have been twice 

imposed, it contends the court failed to impose additional mandatory assessments. 

Appellant has no response to this argument. We agree with respondent. “The $10 

obligation pursuant to Penal Code section 1202.5(a) is a criminal fine,” and the 

Legislature has expressly provided seven additional assessments, surcharge, and penalties 

must be added to any criminal fine. (People v. Knightbent (2010) 186 Cal.App.4th 1105, 

1109.) These seven additional sums are (1) the $10 Penal Code section 1464, subdivision 

(a)(1) penalty assessment; (2) the $7 Government Code section 76000, subdivision (a)(1) 

penalty assessment; (3) the $2 Government Code section 76000.5, subdivision (a)(1) 

penalty assessment; (4) the $2 Penal Code section 1465.7, subdivision (a) state surcharge; 
7

(5) the $3 Government Code section 70372, subdivision (a)(1) state court construction 

penalty; (6) the $1 Government Code section 76104.6, subdivision (a)(1) DNA penalty; 

and (7) the $4 Government Code section 76104.7, subdivision (a) DNA state-only 

penalty. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1529-1530.) “Because the 

seven additional assessments, surcharge, and penalties are mandatory, their omission may 

be corrected for the first time on appeal.” (Id. at p. 1530.) The total sum of $29 should 

have been imposed for these seven mandatory sums. (People v. Knightbent, supra, at 

p. 1113.)

3. Attorney Fees

Appellant argues insufficient evidence supported the court’s finding that she had 

the ability to pay $8,694 in attorney fees. We disagree.

a. Background

At trial in September 2012, appellant testified she had her own online business 

selling furniture. She started living in her North Hollywood apartment in January 2010. 

On her rental application, she had stated she earned $200,000 a year selling cosmetics. In 

January 2012, police arrested her for making criminal threats against Cormier. When 

they asked her why she was not paying her rent, she told them she could “own the 

building” if she wanted it. When she rented the townhouse in January 2012, she paid 

$6,000 down. The townhouse was a three-story residence that was a little over two times 

the size of her old apartment.

At the ability to pay hearing in March 2013, appellant requested and received 

permission to represent herself. She said she had a bachelor’s degree in business from a 

Florida university but had not worked since 2007. The court noted she had testified 

otherwise under oath at trial, and said: “I’m not going to ask you anything further as to 

that because I don’t want to place you in the position where you might incriminate 

yourself for testifying falsely under oath, so I’m just going to let it stay there ma’am. [¶] 

I’m cautioning you that it might not be in your interest to speak any further on that issue.” 

Appellant also said she was living with her family. The court noted she had an apartment 

at the time of trial “in a very expensive location.” When the court asked what she was 
8

doing to seek employment, she said she was “seeing doctors because of [her] emotional 

status.”

The court noted appellant had suggested she had the means to purchase her

apartment building when she was arrested in January 2012, and further, she had stated on 

her rental application that she earned $200,000 a year. It also noted she was “impeccably 

dressed” at every court appearance and had “expensive jewelry, expensive watches, very 

expensive purses,” and “designer-type glasses,” indicating she was living “far above the 

average level” usually seen in the courtroom. Appellant responded that she was

previously engaged to be married to the son of the King of Saudi Arabia, and her 

possessions were gifts from him. The court asked to see appellant’s purse and observed it 

was a Christian Dior purse, asked to see her cell phone and observed it was an iPhone, 

and asked to see her car keys and observed she was driving a Mercedes. The court 

concluded it “disbelieve[d]” appellant’s statements that she did not have the ability to pay 

attorney fees and ordered her to pay $8,694.

b. Analysis

“In any case in which a defendant is provided legal assistance, either through the 

public defender or private counsel appointed by the court, upon conclusion of the 

criminal proceedings in the trial court, . . . the court may, after notice and a hearing, make 

a determination of the present ability of the defendant to pay all or a portion of the cost 

thereof.” (§ 987.8, subd. (b).) We review the trial court’s finding that appellant had the 

ability to pay attorney fees for substantial evidence. (People v. Phillips (1994) 25 

Cal.App.4th 62, 71-72.)

“‘Ability to pay’ means the overall capability of the defendant to reimburse the 

costs, or a portion of the costs, of the legal assistance provided to him or her, and shall 

include, but not be limited to, all of the following”: (1) the defendant’s present financial 

position; (2) the defendant’s reasonably discernible future financial position, except the 

court shall not consider more than six months from the date of the hearing when 

discerning the defendant’s future position; (3) the likelihood the defendant will be able to 

obtain employment within a six-month period from the date of the hearing; and (4) any 
9

other factors that may bear upon the defendant’s financial capability to reimburse the 

county. (§ 987.8, subd. (g)(2).)

“If the court determines that the defendant has the present ability to pay all or a 

part of the cost, the court shall set the amount to be reimbursed and order the defendant to 

pay the sum to the county in the manner in which the court believes reasonable and 

compatible with the defendant’s financial ability.” (§ 987.8, subd. (e).)

We hold sufficient evidence supported the finding that appellant had the ability to 

pay. Appellant has a degree in business. The evidence showed she had run her own 

business and had been fully capable of earning a comfortable living at the time of trial. 

When appellant said she had not worked since 2007, she contradicted (1) her sworn 

testimony six months earlier that she was running her own business, and (2) her rental 

application in or around 2010 in which she stated she earned $200,000 a year. Even if 

she truly was unemployed at the time of the hearing, her education and previous work 

indicated she could likely obtain employment in the next six months and be in a position 

to contribute towards attorney fees. Under section 987.8, these were factors on which the 

court could properly rely. And if the court did not find appellant to be credible when she 

said she could not work and had no assets, that is not for us to reconsider. The trial court, 

having observed appellant throughout trial and then at the ability to pay hearing, was in 

the best position to evaluate her credibility, and we will not disturb that determination. 

(People v. Albillar (2010) 51 Cal.4th 47, 60.)

Appellant likens this case to People v. Nilsen (1988) 199 Cal.App.3d 344 (Nilsen),

but that case is inapposite. In Nilsen, the court ordered the defendant to pay over $88,000 

in attorney fees, and the Court of Appeal reversed because there was not substantial 

evidence of the defendant’s ability to pay. (Nilsen, supra, 199 Cal.App.3d at pp. 346, 

351.) But the defendant in that case had been sentenced to life in prison without the 

possibility of parole, and he was earning only $24 per month working for the chaplain at 

the prison. (Id. at p. 348.) That defendant clearly had no “reasonably discernible future 

financial ability” to pay, and in fact, the statute expressly provides that, “[u]nless the 

court finds unusual circumstances, a defendant sentenced to state prison shall be 
10

determined not to have a reasonably discernible future financial ability to reimburse the 

costs of his or her defense.” (§ 987.8, subd. (g)(2)(B).) Appellant is not in the same 

position here.

Appellant also argues the court violated her constitutional rights to present a 

defense by preventing her from testifying when, after she said she had not worked since 

2007, the court stated it would not ask anything further and cautioned her against saying

anything further on that score. We are not persuaded. The court did not prevent her from 

presenting a defense. Appellant spoke on her own behalf at the hearing. The court heard 

her out. While the court cautioned her against incriminating herself for perjury, she was 

free to explain further, and she never attempted to do so. Moreover, the court’s caution 

applied only to the one issue (the last time she worked) and not to her presentation of 

evidence as a whole. The court did not err.

DISPOSITION

The trial court’s order imposing a $10 crime prevention fine pursuant to section 

1202.5 is modified to include $29 in additional assessments as follows: (1) the $10 Penal 

Code section 1464, subdivision (a)(1) penalty assessment; (2) the $7 Government Code 

section 76000, subdivision (a)(1) penalty assessment; (3) the $2 Government Code 

section 76000.5, subdivision (a)(1) penalty assessment; (4) the $2 Penal Code section 

1465.7, subdivision (a) state surcharge; (5) the $3 Government Code section 70372, 

subdivision (a)(1) state court construction penalty; (6) the $1 Government Code section 

76104.6, subdivision (a)(1) DNA penalty; and (7) the $4 Government Code section 

76104.7, subdivision (a) DNA state-only penalty. So modified, the judgment is affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J. RUBIN, J.