People v. Brown CA5

Filed 1/15/14 P. v. Brown 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F065898 Plaintiff and Respondent, (Super. Ct. No. MCR041737) v.

JOE BROWN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

* Before Cornell, Acting P.J., Detjen, J. and Hoff, J.† † Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo- On August 10, 2012, defendant Joe Brown was convicted of making criminal threats against David Gideon (Pen. Code, § 422; count 1) and exhibiting a deadly weapon in a threatening manner (id., § 417, subd. (a)(1); count 3). He was acquitted of making criminal threats against Cameron Beckman (id., § 422; count 2). On September 28, 2012, the court granted three years of probation subject to various terms and conditions, including payment of a $100 court construction penalty (Gov. Code, § 70372, subd. (a)), an $80 court operations assessment (Pen. Code, § 1465.8, subd. (a)), and a $60 court facilities assessment (Gov. Code, § 70373). On appeal, defendant contends his conviction on count 1 must be reversed because the evidence did not sufficiently show that Gideon experienced sustained fear.1 He also contends the trial court erroneously required payment of the aforementioned fees as a condition of probation. We find the evidence sufficient to support the conviction, but find the challenged fee and assessments could not be ordered as a condition of probation. We affirm the conviction, but remand the case for the trial court to modify the fee and assessments as separate orders. STATEMENT OF FACTS On the morning of August 18, 2011, Gideon and Beckman were helping Gideon’s father move out of an apartment complex in Chowchilla, California. Gideon parked his truck in front of the garage, turned on the stereo system, and loaded boxes. Defendant’s car alarm sounded. Gideon lowered the volume. A few minutes later, defendant