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Filed 12/22/20 P. v. Ussery CA3

NOT TO BE PUBLISHED

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN LANE USSERY,

Defendant and Appellant.

C088376

(Super. Ct. No. 18FE009975)

After a jury found defendant Marvin Lane Ussery guilty of burglary, misdemeanor 

evading a peace officer, and misdemeanor unlawful possession of burglary tools, the trial 

court sentenced him to an aggravated six-year term in state prison, followed by a 

consecutive term of one year in county jail. The trial court also imposed various costs, 

including separate restitution fines for each offense. On appeal, defendant contends: (1) 

his sentence for possessing burglary tools should be stayed pursuant to Penal Code 
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section 654,

1 because that offense was incidental to the commission of the burglary; (2) 

the trial courted erred by imposing separate restitution fines for each of his three offenses, 

rather than a single fine for the case, as required by the language of section 1202.4, 

subdivision (b); (3) the trial court violated due process and Eighth Amendment principles 

when it imposed various costs without first assessing defendant’s ability to pay; and, (4) 

the abstract of judgment and sentencing minutes should be corrected to reflect the trial 

court’s oral pronouncement of sentence.

We agree with defendant’s last claim and will remand for the trial court to address 

the situation. Regarding defendant’s section 1202.4 claim, we agree that imposition of 

multiple misdemeanor restitution fines was unauthorized, but hold that imposition of one 

fine for defendant’s felony offense and one for his misdemeanor offenses is appropriate. 

Accordingly, we will amend the judgment by striking one of the misdemeanor restitution 

fines.

We affirm in all other respects.

I. BACKGROUND

At about 3:08 a.m. on May 19, 2018, defendant and his accomplice broke into a 

gas station convenience store in Folsom, California, and took merchandise worth more 

than $2,500. 

About seven minutes later and 100 feet away, Brian Ortega, an off-duty security 

guard, was walking through the parking lot of an apartment complex when he decided to 

shine his flashlight in the direction of a strange sound, “[l]ike a chain-link fence kind of 

hitting . . . metal.” When Ortega shone his flashlight, he saw defendant with bolt cutters 

just outside the complex’s fence. When Ortega asked defendant what he was doing, 

defendant “[t]old [Ortega] to get the fuck out of there.” 

1 Further undesignated statutory references are to the Penal Code.
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Ortega said to defendant, “ ‘you need to stop what you’re doing and get out of 

here or I’m going to call the police.’ ” Defendant sarcastically replied, “ ‘Hey, thanks for 

the light.’ ” 

After Ortega told defendant he was calling the police, he heard the sound of “the 

bolt cutters kind of shrugging away from fence,” and saw defendant enter a truck and 

drive away with another man. 

Later, after defendant ran a stop sign in his vehicle and ran away from a law 

enforcement officer who ordered him, at gunpoint, to lie on the ground, police found in 

defendant’s truck the gas station’s stolen merchandise, bolt cutters, and a large pry bar. 

A July 2018 information charged defendant with second degree burglary (§ 459—

count one), misdemeanor evasion of a peace officer (§ 148, subd. (a)(1)—count two), and 

misdemeanor possession of burglary tools (§ 466—count three). The information also 

alleged that defendant suffered two prior robbery convictions, both qualifying as serious 

felony convictions or “strikes.” (§§ 667, subds. (b)-(i), 1170.12.) 

Defendant testified in his own defense at trial, denied any involvement in the 

convenience store burglary, and insisted that he was not the man who Ortega saw with 

the bolt cutters. He further testified: The stolen merchandise found in his truck belonged 

to a stranger that he picked up off the street moments before the police stopped him; he 

used the bolt cutters found in his truck to cut locks and chains in connection with his 

recycling business; and he used the crowbar found in his truck to open the hood of his 

truck because the latch on the hood was broken. 

Regarding the burglary tools charge, the trial court instructed the jury as follows: 

“To prove the defendant is guilty of this crime, the People must prove that, one, the 

defendant possessed a pick-lock, crowbar . . . or other instrument or tool; and two, when 

the defendant possessed such a tool or tools, he did so with the intent to break into a 

building.” 
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In closing statements to the jury regarding the burglary tools charge, the 

prosecutor argued defendant was guilty because a pry bar “was used” to enter the 

convenience store, and defendant “was . . . seen, with the[] bolt-cutters trying to break the 

lock off of a gate, a gate that did not belong to him.” 

The jury found defendant guilty of all charges. 

On November 2, 2018, after finding beyond a reasonable doubt that the 

prosecution established a prior robbery conviction, the trial court sentenced defendant as 

follows: for count one, the burglary, six years in state prison (the upper term, doubled for 

the prior strike); for count two, the evasion offense, “one year in county jail, to run 

consecutive”; for count three, the burglary tools offense, six months in county jail to “run 

concurrent to the six years in state prison.” 

Regarding the sequence of defendant’s incarceration, the trial court declared: “So 

it will be six years in state prison, followed by one year in county jail, consecutive. And 

that one year in county jail will be straight time and no early release, no alternatives.” 

Regarding costs, the trial court ordered: victim restitution of $2,570 (§ 1202.4, 

subd. (f)); a restitution fine of $1,200 (§ 1202.4, subd. (b)); a stayed parole revocation 

fine of $1,200 (§ 1202.4, subd. (b)); a $453.62 jail booking fee (Gov. Code, § 29550.2); 

and a jail classification fee of $90.65 (Gov. Code, § 29550.2). The trial court said those 

costs were “all for [c]ount 1.” 

The trial court further ordered restitution fines of $300 for the two misdemeanor 

counts. 

Defendant made no argument or objection regarding costs. 

Though the trial court did not orally impose the costs, both the abstract of 

judgment and minute order from the sentencing hearing reflect imposition of a court 

operations fee of $120 (§ 1465.8), and a conviction assessment fee of $90 (Gov. Code, 

§ 70373). 
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Regarding credits, the trial court said defendant had “155 days of raw time, so 

with good time/work time, that adds up to 309 days . . . credit for time[ ]served.” 

Both the abstract of judgment and a minute order from the sentencing hearing 

indicate the custodial credit was to be applied to the county jail term. 

Further, the abstract of judgment indicates that defendant was to serve his county 

jail sentence before his prison sentence. 

Defendant timely appealed. 

II. DISCUSSION

A. Section 654

Defendant argues his sentence for possessing burglary tools should be stayed 

pursuant to section 654, because the crime was “incidental to the commission of the 

burglary.” Specifically, defendant argues “[a] reasonable inference, given the proximity 

of the apartment complex to the site of the burglary, is that the bolt cutters were being 

used to cut the fence and facilitate the escape from the burglary.”2 

The People disagree, arguing defendant “had the opportunity to reflect on his 

criminal possession of burglary tools” before he used them a second time “to try to cut 

through an apartment complex gate,” and afterwards, when the tools “remained in . . . 

his” vehicle. Thus, “it was a reasonable inference that [defendant] retained ongoing 

possession of the tools to commit more felonious breakings.” 

We conclude substantial evidence supports the trial court’s implicit finding that 

defendant had independent objectives for the convenience store burglary and the 

possession of burglary tools at the apartment complex fence. Accordingly, we reject 

defendant’s argument.

2 The crime of burglary continues until the burglar reaches a temporary place of safety. 

(See People v. Wilkins (2013) 56 Cal.4th 333, 348, fn. 4.)
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Section 654, subdivision (a) provides in pertinent part: “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.” The statute does 

not prohibit multiple convictions for the same conduct, only multiple punishments. 

(People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper 

procedure is to stay execution of sentence on one of the offenses.” (Ibid.)

“In any section 654 inquiry, the court must initially ascertain the defendant’s 

objective and intent. [Citation.] ‘ “If he entertained multiple criminal objectives which 

were independent of and not merely incidental to each other, he may be punished for 

independent violations committed in pursuit of each objective even though the violations 

shared common acts or were parts of an otherwise indivisible course of conduct.” ’

[Citation.] ‘Whether the defendant maintained multiple criminal objectives is determined 

from all the circumstances and is primarily a question of fact for the trial court, whose 

finding will be upheld on appeal if there is any substantial evidence to support it.’ ”

(People v. Tom (2018) 22 Cal.App.5th 250, 260.)

If the trial court does not stay a sentence pursuant to section 654, and offers no 

factual basis for its decision, we presume the court found that the defendant harbored a 

separate intent and objective for each offense. (See People v. Duff (2010) 50 Cal.4th 787, 

796 [imposition of concurrent sentences is precluded by section 654]; People v. Jones

(2002) 103 Cal.App.4th 1139, 1147.)

Here, because the trial court did not stay the sentence for possession of burglary 

tools, we presume the trial court found defendant had independent objectives for 

committing those two crimes.

In People v. Gibson (1949) 94 Cal.App.2d 468, 469-470 the court affirmed an 

attempted burglary conviction, rejecting defendant’s challenge to the sufficiency of the 

evidence, as defendant “was detected by an officer at midnight bearing a ladder down a 
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dark alley and placing it at the rear of a department store” and was “equipped with all the 

tools commonly used by burglars,” including a sledge hammer and wire cutters (id. at 

p. 472).

Here, around 3:15 a.m., minutes after defendant burglarized a gas station 

convenience store nearby, he was observed holding bolt-cutters that were touching the 

fence of an apartment complex. In light of Gibson, this is substantial evidence supporting 

the trial court’s implied factual finding defendant, while possessing the bolt-cutters at that 

moment, had a different criminal objective from the convenience store burglary; the 

intent to burglarize again. Specifically, the intent to burglarize an apartment in the 

complex on the other side of the fence.3

Accordingly, defendant’s argument is unpersuasive.

B. Restitution Fines

Next, defendant argues the trial court erred by imposing separate restitution fines 

for each of his three crimes, because section 1202.4, subdivision (b) authorizes a 

restitution fine only once per “case.” 

The People disagree, arguing our reasoning in People v. Holmes (2007) 

153 Cal.App.4th 539 (Holmes) teaches that “it was appropriate” for the trial court to 

order “separate restitution fine[s] for [defendant’s] misdemeanors.” Further, the People 

state that “[t]o the extent the trial court ordered a separate fine for each misdemeanor 

count rather than simply ordering one fine for both counts, no remand is necessary,” 

because the court “simply divided the misdemeanor fine between the two misdemeanor 

counts, rather than aggregating the amount.” 

3 This section 654 finding was not inconsistent with the prosecutor’s closing argument. 

(Cf. People v. Siko (1988) 45 Cal.3d 820, 826 [sentencing court could not make section 

654 findings for which there was “no showing that” defendant’s crimes were “understood 

in this fashion at trial,” given the instructions and closing arguments].)
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In his reply brief, defendant does not address Holmes, but argues that, “[e]ven if” 

the trial court properly could have imposed “a separate restitution fine for the 

misdemeanors, it lacked the statutory authority to impose separate $300 restitution fines 

for each misdemeanor count.”4 

Section 1202.4, subdivision (b) provides:

“In every case where a person is convicted of a crime, the court shall impose a 

separate and additional restitution fine, unless it finds compelling and extraordinary 

reasons for not doing so and states those reasons on the record.

“(1) The restitution fine shall be set at the discretion of the court and 

commensurate with the seriousness of the offense. If the person is convicted of a felony, 

the fine shall not be less than three hundred dollars ($300) and not more than ten 

thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall 

not be less than one hundred fifty dollars ($150) and not more than one thousand dollars 

($1,000).

“(2) In setting a felony restitution fine, the court may determine the amount of the 

fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the 

number of years of imprisonment the defendant is ordered to serve, multiplied by the 

number of felony counts of which the defendant is convicted.”

In Holmes, the trial court sentenced the defendant to prison for a felony conviction 

and he received probation for a misdemeanor conviction. The trial court imposed 

restitution fines for both the felony and misdemeanor convictions; $400 and $100 

respectively. (Holmes, supra, 153 Cal.App.4th at p. 541.) Additionally, the defendant 

4 Also, in his reply brief, defendant argues that section 654 is the “other reason that the 

court erred in imposing a separate restitution fine for [c]ount [t]hree.” But, as we have 

already concluded that section 654 did not preclude multiple punishments in this case, 

this argument is unavailing.
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received a parole revocation restitution fine of $400 pursuant to section 1202.45 and a 

probation revocation restitution fine of $100 pursuant to section 1202.44. (Holmes, 

supra, at p. 541.)

Although we agreed that generally “a restitution fine is not imposed on ‘each

count’ but instead one fine is imposed taking into account all the offenses in the 

proceeding,” (Holmes, supra, 153 Cal.App.4th at p. 547) we ruled the trial court “could 

not impose a restitution fine . . . to cover both the felony and the misdemeanor because 

the parole or probation revocation restitution fine had to be in the same amount” (id. at 

pp. 547-548). Accordingly, we concluded “the trial court did not err in imposing the 

restitution fines separately for the felony and misdemeanor.” (Id. at p. 548.)

Here, particularly in light of defendant’s silence on the applicability of Holmes,

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we agree with the People that Holmes applies to this case, and therefore the trial court did 

not err in imposing multiple restitution fines where defendant was convicted of a felony 

and misdemeanors.

But we agree with defendant that the record reflects the trial court’s imposition of 

$300 restitution fines for each misdemeanor count.

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 Holmes—where we faced one 

felony conviction and one misdemeanor conviction—has nothing to say about this 

scenario.

We conclude the trial court’s imposition of multiple restitution fines for multiple 

misdemeanor convictions was unauthorized in light of section 1202.4, subdivision (b)’s 

5 Cf. People v. Nguyen (2017) 18 Cal.App.5th 260, 270 [“deem[ing]” appellant’s silence 

vis-á-vis an argument in respondent’s brief “to be acquiescence” to respondent’s 

position].

6 The People’s characterization of the record—that the trial court performed a 

counterintuitive calculation by settling on an aggregate misdemeanor fine, and then 

(without saying so) dividing that fine by two—is unpersuasive.
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language. Accordingly, we will modify the judgment by striking the $300 restitution fine

for count three.

C. Ability to Pay

Defendant argues the trial court violated due process and Eighth Amendment 

principles when it ordered him to pay “more than three times the statutory minimum 

restitution fine under section 1202.4 without first assessing [defendant’s] ability to pay.” 

Relatedly, defendant further contends the trial court violated state and federal due process 

principles by failing to hold an ability to pay hearing before imposing the jail fees, court 

funding assessments, and restitution fines. Anticipating the People’s argument these

claims are forfeited by defendant’s failure to raise it at sentencing, defendant maintains

these claims are not forfeited, because for some claims the failure to object was 

ineffective assistance of counsel, and regarding the mandatory court assessments, 

“existing law did not support” the relevant challenge.

The People argue these claims are forfeited and that the claims fail on the merits. 

We need not decide whether defendant forfeited his ability to pay arguments

because they are without merit. Failure to assert a meritless position does not 

demonstrate ineffective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th 349, 

377.)

Defendant’s due process claim hinges on the analysis in People v. Dueñas (2019) 

30 Cal.App.5th 1157, finding an ability to pay hearing is required before imposing fines 

and fees, and we are not persuaded this analysis is correct. Our Supreme Court is now 

poised to resolve this question, having granted review in People v. Kopp (2019) 

38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the 

court’s conclusion in Dueñas that due process requires the trial court to conduct an ability 

to pay hearing and ascertain a defendant’s ability to pay before it imposes court facilities 

and court operations assessments under section 1465.8 and Government Code section 

70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
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In the meantime, we join several other courts in concluding that the principles of 

due process do not require determination of a defendant’s present ability to pay before 

imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. 

Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 

272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, 

S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 

39 Cal.App.5th 917, 928.) Defendant’s claim pursuant to Dueñas is without merit, 

invalidating his ineffective assistance of counsel claim on this issue.

Similarly, defendant’s Eighth Amendment excessive fines clause claim is without 

merit.

“The Eighth Amendment prohibits the imposition of excessive fines. The word 

‘fine,’ as used in that provision, has been interpreted to be ‘ “a payment to a sovereign as 

punishment for some offense.” ’ [Citation.]” (People v. Gutierrez (2019) 35 Cal.App.5th 

1027, 1040 (conc. opn. of Benke, J.) (Gutierrez).) The determination of whether a fine is 

excessive for purposes of the Eighth Amendment is based on the factors set forth in 

United States v. Bajakajian (1998) 524 U.S. 321 [141 L.Ed.2d 314] (Bajakajian). 

(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728-729 

[applying Eighth Amendment analysis to both defendant’s federal and state excessive 

fines claims].)

“ ‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is 

the principle of proportionality: The amount of the forfeiture must bear some 

relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] 

punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to 

the gravity of a defendant’s offense.’ (Bajakajian, supra, 524 U.S. at p. 334.)

“The California Supreme Court has summarized the factors in Bajakajian to 

determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the 

defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the 
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penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]’ 

(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see

Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to 

pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian,

supra, 524 U.S. at pp. 337-338.)” (People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) 

We review the excessiveness of a fine challenged under the Eighth Amendment de novo. 

(Id. at p. 1072.)

Here, we find that the modified combined amount of $1,500 in restitution fines

imposed for burglary and obstructing a peace officer is not grossly disproportional to the 

level of harm and defendant’s culpability in this matter, particularly in light of 

defendant’s recidivism. Having previously been convicted of robbery, defendant stole 

merchandise valued at over $2,500 from a convenience store and then evaded a police 

officer attempting to detain him, running a stop sign with his vehicle, and ignoring an 

officer’s orders to lie down while the officer was pointing a firearm at him. The societal 

harm and danger caused by defendant’s conduct was not minimal, and therefore 

imposition of restitution fines above the statutory minimums (and very far short of the 

maximums) was not improper. Accordingly, the amended $1,500 restitution fine 

imposed in this case is not excessive under the Eighth Amendment.

Because defendant’s Eighth Amendment claim is without merit, his ineffective 

assistance of counsel claim on this issue fails.

D. Abstract of Judgment 

Finally, defendant claims the abstract of judgment and sentencing minutes should 

be corrected to reflect the trial court’s oral pronouncement of sentence. Specifically, 

defendant contends the abstract of judgment: (1) does not reflect the trial court’s order 

that defendant serve six years in state prison, and then a consecutive term of one year in 

county jail; and (2) improperly reflects “0” credits to be applied to defendant’s prison 

term, despite the trial court’s award of 309 days of credit. 
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The People “agree[] that the minute order and the [a]bstract of [j]udgment should 

be modified to correctly reflect the oral pronouncement of judgment.” 

We agree with the parties that the abstract of judgment does not reflect the trial

court’s oral pronouncement and will remand for the trial court to address the situation.

Here, item 14 of the abstract of judgment indicates that defendant has “0” credits 

for time spent in custody because “credits applied to CT 2 CJ misd.” And item 15 of the 

abstract of judgment indicates defendant is to be sent to state prison “following time to be 

served in [c]ounty [jail] for misdemeanors.” 

We agree with the parties that item 15 directly conflicts with the trial court’s oral 

pronouncement that defendant was to serve his time in state prison first. We also agree 

that, because the trial court was silent regarding the term of incarceration to which the 

custody credits were to be applied (prison or county jail), item 14 is in tension with the 

oral pronouncement.

Given this state of the record, and in light of the distinct possibility that defendant 

has already served part of his sentence in a manner that is inconsistent with the trial 

court’s oral pronouncement, we think the proper remedy is to remand to the trial court to 

address the situation. (Cf. Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254 

[explaining that a trial court “is considered to be in the best position to conduct”

resentencing hearings, and observing that a “preference for a judge who is well informed 

about the case serves the interests of both parties, and an alternative practice would 

impose heavy burdens on scarce judicial resources”]; People v. Salazar (1994)

29 Cal.App.4th 1550, 1557 [remanding to the trial court “because it is in the best position 

to determine whether it correctly calculated the credits to which appellant was entitled”].)

Further, though the trial court did not orally impose them, we will modify the 

judgment to impose the mandatory court operations fee of $120 (§ 1465.8) and 

conviction assessment fee of $90, as currently reflected in the abstract of judgment.

(People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1415.)
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III. DISPOSITION

The judgment is modified to strike the $300 restitution fine for count three and to 

impose the mandatory court operations fee of $120 and conviction assessment fee of $90. 

The matter is remanded for the trial court to address the discrepancy between its oral 

pronouncement and the abstract of judgment. The clerk of the trial court shall send 

copies of any amended abstract of judgment to the relevant authorities.

In all other respects, the judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

DUARTE, Acting P. J.

/S/

 

HOCH, J.