1

Filed 8/1/14 P. v. Crawford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

SUNNY RAY CRAWFORD,

Defendant and Appellant.

E059026

(Super.Ct.No. FSB1300462)

OPINION

APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, 

Judge. Affirmed as modified.

Gambale & Gambale and Jennifer A. Gambale, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, 
2

Lynne McGinnis, and Michael Pulos, Deputy Attorneys General, for Plaintiff and 

Respondent.

Defendant Sunny Ray Crawford confronted his then-ex-girlfriend outside her 

house. When she went inside the house, he climbed in through a window. Throughout 

this incident, he alternated between saying he loved her and wanted to get back together 

with her, on one hand, and threatening to beat her up, on the other hand.

After a jury trial, defendant was found guilty of making a criminal threat. (Pen. 

Code, § 422.) He was found not guilty of misdemeanor vandalism. (Pen. Code, § 594, 

subd. (b)(2)(A).) The jury hung on a charge of burglary (Pen. Code, § 459), and the trial 

court dismissed this charge on the People’s motion. Defendant was placed on probation 

and ordered to pay the usual fees and fines.

In this appeal, defendant contends:

1. The trial court erred by failing to give a unanimity instruction with respect to 

the charge of making a criminal threat.

2. The trial erred by imposing an appointed counsel fee and a presentence 

investigation and report fee because there was insufficient evidence that defendant had 

the ability to pay.

3. The trial court erred by making the payment of fees a condition of probation.

The People concede that probation cannot be made conditional on the payment of 

fees. We agree. Otherwise, we find no prejudicial error. Hence, we will modify the 

judgment.
3

I

FACTUAL BACKGROUND

Defendant and Maribel Herrera were in a romantic relationship, off and on, for 

five years; for the last two of those years, Maribel lived with defendant and his mother.

In December 2012, Herrera moved out, so she could focus on finishing 

cosmetology school. She moved back into her family’s house in Muscoy.

On February 3, 2013, around 4:00 p.m., defendant came to Herrera’s house. He 

stood in the front yard, calling her name.

Herrera went outside, but she took some pepper spray with her. Defendant “was 

acting mad.” He said he wanted her back. He accused her of moving out of his house 

because she was “seeing another man.” He said, “I feel like kicking your ass.” He also 

said he was going to choke her. Herrera testified that she was not afraid and “didn’t feel 

like [defendant] was going to hurt [her] at any time during that conversation.”

After about 10 minutes, Herrera did not want to talk anymore, so she went back 

inside. At this point, the front door was locked. Defendant kept calling her name. She 

hid in a closet. She testified that she hid because she did not want to talk to defendant, 

not because she was afraid.

Defendant came in through Herrera’s bedroom window.1 He went through the 

house looking for her. As Herrera described it, “He was saying I love you, where are 

 

1

There was some evidence that defendant had broken the same window a 

few days earlier, which was the basis of the misdemeanor vandalism charge.
4

you, let’s talk. And he’ll change up and be like where the fuck are you. And say when I 

find you I’m going to fuck you up. And then he’ll be like I love you, I’m sorry, please 

come back.” He also said, “[I’m] going to choke you and beat your ass up.” At trial, 

Herrera testified that at this point, she was angry, but she still was not afraid.

Finally, defendant left the house (through the front door) and drove away. 

Meanwhile, Herrera’s brother had called 911. When Herrera spoke to the police, she was 

crying and upset. She told them that “she was afraid for her life, and if [they] didn’t 

arrest him[,] [defendant] would come back and carry out his threats.”

By the time of trial, defendant and Herrera had gotten back together. Herrera 

dismissed her statement to the police as “over[-]dramatic” and “exaggerated.”

II

FAILURE TO GIVE A UNANIMITY INSTRUCTION

Defendant contends that the trial court erred by failing to give a unanimity 

instruction with respect to the criminal threats charge.2

“In a criminal case, . . . the jury must agree unanimously the defendant is guilty of 

a specific crime. [Citation.] Therefore, cases have long held that when the evidence 

suggests more than one discrete crime, either the prosecution must elect among the 

crimes or the court must require the jury to agree on the same criminal act. [Citations.]” 

(People v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence 

 

2

The trial court did give a unanimity instruction, but it was expressly limited 

to the misdemeanor vandalism charge.
5

shows only a single discrete crime but leaves room for disagreement as to exactly how 

that crime was committed or what the defendant’s precise role was, the jury need not 

unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the 

defendant is guilty. [Citation.]” (Ibid.)

The first thing we must decide, then, is whether the evidence shows two (or more) 

instances of the offense of making a criminal threat. Ordinarily, we would look first to 

the words of the statute that defines the offense.

This offense is committed by “willfully threaten[ing] to commit a crime which 

will result in death or great bodily injury to another person, with the specific intent that 

the statement . . . is to be taken as a threat . . . , which, on its face and under the 

circumstances in which it is made, is so unequivocal, unconditional, immediate, and 

specific as to convey to the person threatened, a gravity of purpose and an immediate 

prospect of execution of the threat, and thereby causes that person reasonably to be in 

sustained fear for his or her own safety or for his or her immediate family’s safety . . . .”

This language, however, is somewhat ambiguous with respect to what constitutes 

a single instance of the offense. Suppose, for example, the defendant texts the victim, 

every five minutes for an hour, “I’m going to kill you and I’m going to kill your 

daughter.” Do we count the number of separate threatening communications? Or the 

number of crimes threatened? Or the number of times the victim is placed in sustained 

fear?
6

We therefore turn to the case law on this issue. The leading case is People v. 

Melhado (1998) 60 Cal.App.4th 1529. There the defendant failed to pay for repairs on 

his car. (Id. at pp. 1532-1533.) The manager of the repair shop therefore put the 

defendant’s car in storage. At 9:00 or 9:30 a.m., the defendant told the manager, “I’m 

going to blow you away if you don’t bring my car back. I’m going home and I’m going 

to bring a grenade.” (Id. at p. 1533.) After the defendant left, the manager called the 

police. At 11 a.m., the defendant returned. In the presence of the manager and two other 

employees, he pulled out a grenade and yelled, “I’m going to blow you away,” “I’m 

going to blow up this place. If I don’t get this car by Monday, then I’m going to blow it 

away.” (Ibid.)

On appeal, the court held that the trial court erred by failing to give a unanimity 

instruction because the jury could have found two separate offenses of making a criminal 

threat. (People v. Melhado, supra, 60 Cal.App.4th at pp. 1534-1539.) It reasoned that, in 

the 9:00 a.m. incident, all of the elements of the crime were satisfied. (Id. at pp. 1536-

1538.)

Significantly, in Melhado, the People were arguing that the 9:00 a.m. incident did 

not meet the statutory definition of the crime because one of the elements — i.e., that the 

threat was so unequivocal, unconditional, immediate and specific as to convey an 

immediate prospect of execution of the threat — was absent. (People v. Melhado, supra, 

60 Cal.App.4th at pp. 1537-1538.) The court’s discussion therefore responded to this 

contention.
7

The fact, however, that all the elements of a crime have been satisfied tells you 

when the crime has commenced; it does not necessarily tell you when the crime has 

ended. For example, a theft begins as soon as there has been a taking of personal 

property belonging to another, but “the theft continues until the perpetrator has reached a 

place of temporary safety with the property. [Citation.]” (People v. Gomez (2008) 43 

Cal.4th 249, 254-255.) Implicitly but necessarily, Melhado concluded that the crime the 

defendant commenced at 9:00 a.m. had ended before he commenced a separate crime at 

11:00 a.m.

The obvious basis for that conclusion in Melhado is that there, the defendant 

parted with the victim and thus was not making any threats for an hour and a half. Here, 

by contrast, defendant stayed with the victim and kept making threats. We also note that 

all of defendant’s threats were of the same nature — to beat the victim up and to choke 

her. Moreover, while there is some room for doubt about when the victim first started to 

be afraid (of which more below), once she did, she remained in constant fear until 

defendant left. We see no way to carve up this course of conduct into distinct crimes.

Defendant claims that, when he first entered the house, he said he loved Herrera; it 

was only when he could not find her that he got frustrated and started to threaten her 

again. He points out that the jury hung on the burglary charge; he claims that at least one 

juror must have questioned whether he entered the house with the intent to threaten. He 

concludes that, because he lacked the intent to threaten Herrera when he first entered the 
8

house, “the threats made outside the home were separate and distinct from the threats 

made inside the home.”

The evidence, however, does not show any change of intent. When defendant was 

outside, he cajoled and threatened alternately, and when he was inside, he continued to

cajole and threaten alternately. He pursued Herrera inside the house against her will; she 

had gone in and locked the door, which was why he had to climb in through a window. 

She had to hide in a closet in her own home to evade him. The fact that one juror may 

have been unconvinced that defendant entered the house with the intent to threaten does 

not change the evidence. (See People v. Miranda (2011) 192 Cal.App.4th 398, 405-406 

[jury’s “not true” finding on personal firearm use allegation does not mean there was 

insufficient evidence that defendant was shooter].) At most, for a few moments, 

defendant was hopeful that he could catch more flies with honey than with vinegar. But 

this does not mean he committed two separate offenses, any more than a kidnapper who 

unsuccessfully tries to talk his victim into staying has committed two kidnappings.

We recognize that People v. Salvato (1991) 234 Cal.App.3d 872 held that Penal 

Code section 422 does not “‘ . . . contemplate[] a continuous course of conduct of a series 

of acts over a period of time. [Citation.]’ [Citation.]” (Salvato, supra, at pp. 882-883.) 

There, however, the defendant had threatened the victim as many as 16 times between 

January and March 1988 and between February and April 1989. (Id. at pp. 876-877.) 

We would agree that Penal Code section 422 cannot be stretched into encompassing that

as a single crime. Making a criminal threat, however, does necessarily consist of some
9

series of acts over some period of time (even if it is only the utterance of several words 

over several seconds). Salvato simply does not tell us where to draw the line on these 

facts.

In sum, the evidence showed only a single discrete instance of the crime of 

making a criminal threat. On this evidence, if the jury had found defendant guilty on two 

counts of making a criminal threat, we would have to reverse one of the convictions. We 

therefore conclude that a unanimity instruction was not required.

Separately and alternatively, however, even assuming the evidence showed two 

discrete instances of the crime, the failure to give a unanimity instruction was harmless 

under any standard. The evidence that Herrera was in fear when she was outside the 

house was slightly weaker than when she was inside the house. She went outside 

voluntarily; she stayed there talking to defendant for 10 minutes. Admittedly, she took 

some pepper spray outside with her, but she did so even before defendant had made any 

threats. By contrast, once she went inside the house, she manifested fear by hiding in the 

closet.3 At trial, of course, she testified that she was not afraid at any point. However, 

she was impeached with her statement to the police that “she was afraid for her life . . . .”

Thus, a juror could rationally find that the threats inside the house constituted a 

crime, but the threats outside the house did not; or that both sets of threats constituted a 

 

3 Herrera’s brother testified that defendant did not say anything “threatful” 

inside the house. However, he admitted that he was in the bathroom making a 911 call, 

so he did not hear everything that defendant said.
10

crime; or that neither set of threats constituted a crime. However, no rational juror could 

have concluded that the threats outside the house did constitute a crime yet the threats 

inside the house did not. Since the jurors found defendant guilty, we are convinced 

beyond a reasonable doubt that they agreed unanimously that the threats inside the house 

constituted a crime.

Defendant argues that some of the threats were conditional. Thus, he argues, some 

of the jurors could have found that the threats outside the home were too conditional to 

constitute a crime, while other jurors could have found that the threats inside the home 

were too conditional to constitute a crime. The problem with this argument is that at least 

some of the threats, both outside and inside, were unconditional.

For example, Herrera testified that, while outside the house, defendant said, “I feel 

like kicking your ass”; he did not say he was definitely going to kick her ass. However, 

she also testified that, outside the house, defendant said unconditionally that “he was 

going to choke me.”

Similarly, Herrera testified that when defendant threatened, inside the house, to 

kick her ass, he prefaced that threat with the words, “if I find out you’re cheating[.]” 

However, she also testified that, inside the house, he said unconditionally, “[I’m] going to 

choke you and beat your ass up.”

In sum, then, even assuming the jurors were reluctant to rely on defendant’s 

arguably conditional threats, there was undisputed evidence that he made unconditional 

threats, both inside and outside the house. The evidence of conditional threats therefore 
11

does not shake our conclusion that the jurors unanimously found a criminal threat inside 

the house.

III

THE IMPOSITION OF FEES AT SENTENCING

Defendant raises two contentions regarding the fees that he was ordered to pay at 

sentencing.

A. Additional Factual and Procedural Background.

According to the probation report, defendant was 22 years old. He had been 

educated through the 11th grade. He had never been employed; his only income was 

$825 a month in Supplemental Security Income (SSI) benefits. He lived with his mother. 

He had no debts.

The probation report recommended the imposition of $500 as an appointed 

counsel fee (Pen. Code, § 987.8, subd. (b)), $505 as a presentence investigation and 

report fee (Pen. Code, § 1203.1b), $40 as a court security fee (Pen. Code, § 1465.8, subd. 

(a)(1)), and $30 as a criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)). It also 

recommended a finding that defendant had the ability to pay the first two of these fees. 

Finally, it recommended that defendant be required to pay $55 a month toward all fees, 

starting in 30 days.

At sentencing, the trial court imposed each of these fees in the recommended 

amount. However, it ordered defendant to pay $50 a month toward all fees, starting in 60 
12

days. The trial court also made it a condition of probation that defendant “comply with 

any court-ordered payment schedule.” (Capitalization altered.)

B. Ability to Pay.

Defendant contends that the trial court erred by imposing the appointed counsel 

fee and the presentence investigation and report fee because there was insufficient 

evidence that he had the ability to pay them.

Preliminarily, the People argue that defendant forfeited this contention by failing 

to raise it at the sentencing hearing. The question of whether a defendant forfeits the 

insufficiency of the evidence of the ability to pay these fees by failing to raise it below is 

difficult and unsettled; it is currently before the Supreme Court in People v. Aguilar

(2013) 162 Cal.Rptr.3d 246, review granted Nov. 26, 2013, S213571. Hence, we will 

assume, without deciding, that defendant did not forfeit the issue in this case. Even if so, 

however, there was sufficient evidence of ability to pay.

“The court’s finding of the defendant’s present ability to pay . . . may be implied 

. . . . [Citation.] But any finding of ability to pay must be supported by substantial 

evidence. [Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398, 

disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599.) 

“‘ . . . “Substantial evidence includes circumstantial evidence and any reasonable 

inferences drawn from that evidence. [Citation.]” [Citation.] We “‘“presume in support 

of the judgment the existence of every fact the trier could reasonably deduce from the 
13

evidence.”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Lopez (2013) 56 Cal.4th 

1028, 1069.)

The trial court could reasonably find that a person who has income of $825 a 

month, no housing expenses, and no debts can pay $50 a month toward fees. Defendant 

argues that the probation report did not list his expenses. However, it did state that he 

had no debts, he did not pay any child support, he was in good health, and he took no 

medications; from the fact that he lived with his mother, the trial court could reasonably 

infer that he had no housing expenses. If he had significant expenses not shown by the 

probation report, he was free to introduce evidence of them at the sentencing hearing.

Defendant also complains that there was no evidence about why he received SSI; 

he argues that he may have been disabled and thus unable to work. All the trial court 

needed to know, however, was the fact that he did receive SSI. Again, if any other 

information was relevant, defendant was free to offer it.

Defendant argues that “the procedural safeguards set forth in [Penal Code] section 

1203.1b were not followed in the present case.” Penal Code section 1203.1b, subdivision 

(a), as relevant here, provides that: “The court shall order the defendant to appear before 

the probation officer . . . to make an inquiry into the ability of the defendant to pay all or 

a portion of [presentence investigation and report] costs. The probation officer . . . shall 

determine the amount of payment and the manner in which the payments shall be made to 

the county, based upon the defendant’s ability to pay. The probation officer shall inform 

the defendant that the defendant is entitled to a hearing that includes the right to counsel, 
14

in which the court shall make a determination of the defendant’s ability to pay and the 

payment amount.”

Here, defendant did appear before the probation officer. Moreover, the probation 

officer did make a determination of defendant’s ability to pay. Defendant complains that 

there is no evidence in the record that the probation officer ever informed him of his right 

to a hearing. However, absent contrary evidence, we are entitled to presume that the 

probation officer did his or her duty. (Evid. Code, § 664.)

We therefore conclude that the trial court properly imposed both the appointed 

counsel fee and the presentence investigation and report fee.

C. Making Payment of the Fees a Condition of Probation.

Defendant contends that the trial court erred by making the payment of these fees 

a condition of probation.

The People concede that this was error. While it was appropriate to impose the 

fees as a result of defendant’s criminal conviction, payment could not be made a 

condition of probation. (People v. Hart (1998) 65 Cal.App.4th 902, 906-907.)

As the People point out — and defendant does not dispute — the trial court was

required to make payment of the restitution fine a condition of probation. (Pen. Code, 

§ 1202.4, subd. (m).) However, there is a separate probation term (No. 19) that requires 

defendant to pay the restitution fine. Accordingly, we may safely delete the 

(unnumbered) probation term that requires defendant to comply with any court-ordered 

payment schedule.
15

IV

DISPOSITION

The probation conditions are modified as follows: The unnumbered probation 

term that requires defendant to “comply with any court-ordered payment schedule” 

(capitalization altered) is deleted. As thus modified, the judgment is affirmed. The clerk 

of the superior court is directed to prepare an amended sentencing minute order.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

P. J.

MILLER

J.