Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA800944, Stephan G. Saleson, Judge. Affirmed in part and reversed in part with directions.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Chauncey Alexander Hollis tried to cash a fake traveler’s check, using a fake driver’s license as identification. At trial, he testified that this was a case of mistaken identity — the perpetrator was actually his brother.
A jury found defendant guilty of forgery of a fictitious financial instrument. (Pen. Code, § 476.) It deadlocked on charges of burglary (Pen. Code, § 459), forgery (Pen. Code, § 470, subd. (d)), and possession of a forged driver’s license (Pen. Code, § 470b), which were eventually dismissed. Defendant admitted one 1-year prior prison term enhancement. (Pen. Code, § 667.5, subd. (b).) As a result, he was sentenced to a total of three years in prison.
Defendant now contends:
1. There was insufficient evidence that defendant was the person who committed the crime.
2. Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223, 226, and 302, concerning the evaluation of witnesses’ testimony, were erroneous because they effectively lowered the prosecution’s burden of proof.
3. The trial court erred by requiring defendant to pay both a restitution fine and appointed counsel fees without finding that he had the ability to pay.
We agree that the trial court erred by requiring defendant to reimburse appointed counsel fees, because there was no evidence that he had the ability to do so. We find no other prejudicial error. Accordingly, we will reverse and remand with directions to reconsider the fee reimbursement order.
I
FACTUAL BACKGROUND
A. The Evidence Against Defendant.
A man walked up to a register at the Wal-Mart in Fontana to buy a pair of pants. He said that he wanted to pay with a $100 American Express traveler’s check. The check was in the name of “Jerry Jones.” As identification, he produced a Nevada driver’s license in the name of “Jerry Jones.” The cashier gave both the check and the license to her managers for approval. One manager suspected that the check was a fake. As a result, the police were called.
Meanwhile, the cashier asked the man to step aside so she could take care of other customers. He waited for a while, but then he walked out. The Nevada license and the American Express checks turned out to be, in fact, fake.
At trial, the cashier testified that the man’s hair was in cornrows, and he was wearing a white jersey with stripes. She identified defendant as the man.
Still photographs of the transaction were introduced into evidence. Because they were taken by a surveillance camera directly over the cashier’s head, the man’s face is not clearly visible; however, he does at least resemble defendant. His hair is in cornrows. He is wearing a mostly white short-sleeved shirt with some dark blue vertical stripes.
Officer Mario Mancha was dispatched to the Wal-Mart. He had been given a description of a Black male suspect wearing a white T shirt and black pants. As he was walking in, he noticed a man just walking out who matched this description (except that his shirt had stripes). At trial, Officer Mancha identified defendant as this man.
As Officer Mancha turned to follow him, the man started running. Officer Mancha chased the man through the parking lot; at times, he lost sight of him. At one point, though, he did see the shirt down “around his arms” and a “wife beater” T shirt underneath.
When Officer Mancha caught up with him, the man was sitting in a vehicle. He was wearing a wife beater. His hair was in corn rows. Two women were in the vehicle with him, but they said that they had just met him. Officer Mancha did not try to locate the striped jersey.
Officer Mancha arrested the man. He told Officer Mancha that his name was Jerry Jones, but he “couldn’t remember his birthday.” When Officer Mancha searched him, he found two more American Express traveler’s checks, both with the same serial number as the one given to the cashier. Eventually, the arrestee admitted that he was defendant.
Defendant was advised of his Miranda rights. He signed a written Miranda advisal and waiver form. He was handcuffed behind his back and transported to the police station. Officer Mancha then interviewed him. Defendant stated that he had sold some earrings to a stranger in exchange for the license and the three checks. He admitted knowing that these items were fake.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Officer Mancha turned defendant over to other officers for booking. At that point, according to Officer Mancha, defendant’s hair was still in cornrows. In defendant’s booking photo, the hair on the left side of his head is in cornrows, but the hair on the right side of his head is loose, bushy, and unkempt.
B. Defendant’s Testimony.
Defendant testified that he went to the Wal-Mart with his “baby mother” Neisha and her friend Ebony (and that they later falsely denied knowing him). He stayed out in the vehicle while they went inside. He was wearing a white wife beater and blue jeans. He claimed that half of his hair was in cornrows.
Meanwhile, defendant’s brother phoned him. On learning that defendant was at Wal-Mart, defendant’s brother said he would come over there to shop. When the brother arrived, they talked for a while. According to defendant, his brother was “a split image” of him. His brother was wearing a dark blue and white jersey and jeans.
At first, defendant refused to give his brother’s name. However, when the trial court threatened to strike defendant’s testimony, he gave his name as Jeremy.
Defendant’s brother said, “... I’m going to do this lick” (meaning to commit a crime), then entered the Wal-Mart. The two women returned to the vehicle. They all waited for defendant’s brother.
Defendant then saw his brother running from the store and Officer Mancha chasing him. His brother ran up to him, asked him to hold the checks, then threw them on the ground. His brother then resumed running. Officer Mancha was still chasing him.
Two other officers then showed up at the vehicle and arrested defendant. They retrieved the checks from the ground. Defendant denied identifying himself as Jerry Jones. He also denied being Mirandized. He admitted that the signature on the Miranda form looked like his, but he claimed that it must have been forged. He also claimed that he did tell the police that the perpetrator was his brother. They wanted him to snitch on someone who had “guns and drugs,” but he refused.
Defendant admitted that he had prior convictions for burglary and two forgery-related crimes. He claimed that these crimes, too, had actually been committed by his brother; he had pleaded guilty only because his brother had begged him to, so his wife would not divorce him.
II
THE SUFFICIENCY OF THE EVIDENCE OF IDENTITY
Defendant contends that there was insufficient evidence that he was, in fact, the perpetrator.
“‘When reviewing a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Lewis 46 Cal.4th 1289-1290, fn. omitted.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]”....’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.) “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Here, both the cashier and Officer Mancha identified defendant as the perpetrator. Officer Mancha also testified that the man he arrested — i.e., defendant — gave his name as “Jerry Jones,” the name that was also on the Nevada license and on the American Express check. Moreover, Officer Mancha found two identical checks on defendant’s person. Finally, after defendant was Mirandized, he admitted being the perpetrator.
Defendant relies on his own testimony that the perpetrator was actually his brother. At trial, he implied that Officer Mancha was lying — trying to frame him because he refused to snitch. The jury, however, could reasonably conclude that it was defendant, not Officer Mancha, who was lying. Defendant was impeached with a prior felony conviction. Also, he was plainly lying when he denied being Mirandized. His signed Miranda form was in evidence. Defendant even admitted that the signature looked like his; he claimed it was forged, but he did not explain how the police would have known what his signature looked like.
There was no other evidence that defendant so much as had a brother. No other members of defendant’s family testified; no photograph of a brother was introduced into evidence. Defendant failed to call Neisha or Ebony to corroborate his testimony.
Defendant points out that the perpetrator was wearing a striped jersey, whereas he was wearing a white wife beater. Officer Mancha, however, testified that while he was chasing the perpetrator, he saw him in the process of removing the jersey; moreover, he saw that he was wearing a wife beater underneath. Even in the absence of such testimony, it stands to reason that defendant could have simply removed and discarded the jersey. Officer Mancha’s mere failure to look for the jersey is hardly proof that it was not out there in the parking lot somewhere.
As defendant also notes, the perpetrator’s hair was in cornrows, whereas his booking photo shows only half of his hair in cornrows. He argues that he was in handcuffs, which would have made it physically impossible for him to undo any cornrows before the booking photo was taken. The record does show that, when Officer Mancha turned him over to other officers at the station for booking, defendant’s hair was still in cornrows and his hands were cuffed behind his back. There is no evidence, however, of how much time elapsed before the booking photograph was taken and no evidence that defendant’s hands remained cuffed behind his back this whole time.
If anything, the booking photo is yet more evidence that defendant was the perpetrator. Obviously, he was trying to change his appearance; this is evidence of consciousness of guilt, and hence of identity. His explanation was unbelievable. Who goes around with only one side of their hair in cornrows?!?
We therefore conclude that there was ample evidence that defendant was the perpetrator.
II
CALCRIM INSTRUCTIONS REGARDING THE EVALUATION OF WITNESSES’ TESTIMONY
Defendant contends that CALCRIM Nos. 223, 226, and 302, concerning the evaluation of witnesses’ testimony, erroneously lowered the prosecution’s burden of proof.
A. Forfeiture.
Preliminarily, the People argue that defense counsel forfeited this contention by failing to object to the instructions below. No objection is necessary, however, to preserve a claim that an instruction violated a defendant’s substantial rights. (Pen. Code, § 1259; People v. Kelly (2007) 42 Cal.4th 763, 791.)
The People rely on the general principle that “‘a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Defendant, however, is arguing that the instructions were not “correct in law.” Hence, he had no duty to request a clarification or to object. (Id. at p. 1012.)
B. General Legal Principles.
“A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 67-68.) “[T]he reviewing court ‘“‘must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]”’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
C. CALCRIM No. 223.
CALCRIM No. 223, as given in this case, stated:
“Facts may be proved by direct or circumstantial evidence, or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided[,] but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water[,] that[] testimony is circumstantial evidence because it may support a conclusion that it was raining outside.
“Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state[] and acts necessary to a conviction[,] and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all of the evidence.” (Italics added.)
Defendant argues that the italicized language “tells the jury that the defense has a duty to present evidence to disprove the charge.” The People respond that “[t]his is essentially the same argument rejected in People v. Anderson [(2007)] 152 Cal.App.4th [919] and People v. Ibarra [(2007)] 156 Cal.App.4th [1174].” Not so. Admittedly, Anderson and Ibarra did reject challenges to CALCRIM No. 223. The argument in those cases, however, was that, by stating that neither type of evidence is entitled to any greater weight than the other, the instruction improperly suggested that the jurors were not free to give certain specific circumstantial evidence greater weight than certain specific direct evidence, or vice versa. (Ibarra, at p. 1186; Anderson, at p. 930.) Those cases did not address defendant’s particular argument.
Nevertheless, that argument is unpersuasive. The instruction simply does not say what defendant claims it does. It states that both direct and circumstantial evidence are “acceptable” to disprove a charge. Certainly a defendant has no burden of proof; at the same time, however, a defendant does have a constitutional right to present evidence to disprove the charge, if he or she chooses to do so. The instruction merely assists the jury in evaluating both defense and prosecution evidence.
D. CALCRIM No. 226.
The relevant portion of CALCRIM No. 226, as given below, stated: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness, and decide how much of it you believe.”
Defendant argues that this instruction “insinuates to the jury that [he] was required to disprove some element of the offense....” Once again, this simply is not what the instruction says. The wording of the instruction is not susceptible to defendant’s interpretation that he has a burden to disprove any element of the offense, especially since the instruction must be read as a whole with the other instructions, which make it clear that the prosecution has the burden of proof.
E. CALCRIM No. 302.
CALCRIM No. 302, as given in this case, stated: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
Defendant challenges this instruction on numerous grounds.
First, defendant argues that it implies that the defense has some burden of proof — that the jurors must “‘believe’ defense evidence in order to acquit....” Not so. The instruction, by its terms, applies only when there is a conflict in the evidence. Even then, it simply states that the jurors “must decide what evidence, if any, to believe.” (Italics added.) Plainly, they have the option of disbelieving the evidence on both sides of the conflict. And, of course, under the standard reasonable doubt instruction (CALCRIM No. 220), if they have a reasonable doubt regarding the prosecution’s evidence as to any element, they must acquit.
Second, he argues that the wording, “do not disregard the testimony of any witness without a reason,” is erroneous as applied to prosecution witnesses, because it creates a presumption that they are truthful, and thus it requires a defendant to disprove their testimony. This argument was rejected in People v. Anderson, supra, 152 Cal.App.4th 919: “CALCRIM No. 302 does not create a presumption of credibility. It merely cautions the jurors not to disregard testimony on a whim. In this regard, CALCRIM No. 302 is no different from CALJIC No. 2.22, which cautions jurors not to disregard the testimony of the greater number of witnesses ‘merely from caprice, whim or prejudice.’ [Citation.] In People v. Rincon-Pineda (1975) 14 Cal.3d 864 [123 Cal.Rptr. 119, 538 P. 247], the state high court directed that CALJIC No. 2.22 ‘be given in every criminal case in which conflicting testimony has been presented.’ [Citation.]” (Id. at p. 939; accord, People v. Ibarra, supra, 156 Cal.App.4th at p. 1190.)
Third, he argues that the wording about not “favor[ing] one side or the other” conflicts with the presumption of innocence, which, in a sense, requires the jury to favor the defense. This argument, too, was rejected in Anderson: “Defendant misreads the instruction. CALCRIM No. 302 cautions the jury not to disregard testimony ‘without a reason or because of prejudice or a desire to favor one side or the other.’ (Italics added.) The instruction does not tell the jury not to favor one side over the other; it cautions against disregarding testimony because of a desire to favor one side over the other.” (People v. Anderson, supra, 152 Cal.App.4th at p. 939.)
Fourth, he argues that, by focusing on the evidence actually presented, it prevents the jury from having a reasonable doubt based on a lack of evidence. Once again, however, CALCRIM No. 302 addresses conflicts in the evidence. Therefore, naturally, it concerns only evidence and not lack of evidence. Lack of evidence is governed by the standard reasonable doubt instruction, CALCRIM No. 220.
Fifth, he argues that it requires the jury to choose between the prosecution evidence and the defense evidence, effectively forbidding it from arriving at its own intermediate position. Once again, this argument was rejected in Anderson: “This contention is again based on a misreading of the instruction. CALCRIM No. 302 cautions not to ‘simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses.’ (Italics added.) It further cautions: ‘What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.’ (Italics added.) The instruction says nothing about choosing between prosecution and defense witnesses. It merely states the common sense notion that the number of witnesses who have given testimony on a particular point is not the test for the truth of that point. It does no more. The jury remains free to choose the witness or witnesses it believes and what part of a witness’s testimony it finds believable.” (People v. Anderson, supra, 152 Cal.App.4th at p. 940; accord, People v. Ibarra, supra, 156 Cal.App.4th at p. 1191.)
Sixth, he argues that it implies that the number of witnesses who testify to a certain point, while not controlling, is relevant. This argument was rejected in People v. Reyes (2007) 151 Cal.App.4th 1491, 1497. The number of witnesses on a point is not wholly irrelevant; it is one of many things that the jurors may take into account in evaluating the credibility of the witnesses. CALCRIM No. 302 advises the jury that ultimately, it is the convincing force of the evidence, and not just the number of witnesses, that should be controlling.
CALCRIM No. 226, as given here, states that, in evaluating a witness’s testimony, the jurors may ask themselves, among other things, “How reasonable is the testimony when you consider all the other evidence in the case?” and “Did other evidence prove or disprove any fact about which the witness testified?” In other words, they can consider whether other witnesses testified to the same point. Defendant does not challenge this portion of CALCRIM No. 226.
We therefore reject defendant’s challenges to CALCRIM Nos. 223, 226, and 302.
III
ABILITY TO PAY FINES AND FEES
Defendant contends that the trial court erred by failing to determine his ability to pay before requiring him to pay a $400 restitution fine (Pen. Code, § 1202.4), a $400 parole revocation fine (Pen. Code, § 1202.45), and $150 in appointed counsel fees (Pen. Code, § 987.8). Alternatively, he contends that his trial counsel rendered ineffective assistance by failing to raise these contentions below.
A. Restitution Fine and Parole Revocation Fine.
Defense counsel forfeited defendant’s challenge to the restitution fine by failing to raise it below.
“[B]ecause the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citations.] A challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; see also People v. Forshay (1995) 39 Cal.App.4th 686, 689-690.)
A parole revocation fine must be set in the same amount as a restitution fine. (Pen. Code, § 1202.45.) Accordingly, defense counsel forfeited defendant’s challenge to this fine, too, by failing to raise it below.
Defendant contends that defense counsel’s failure to object constituted ineffective assistance. For him to prevail on this contention, however, the record would have to demonstrate, among other things, that there could be no satisfactory explanation for counsel’s challenged action. (People v. Salcido (2008) 44 Cal.4th 93, 170, 172.) Here, for all we know, if defense counsel had raised the issue, the People would have been able to introduce ample evidence of defendant’s ability to pay. We therefore cannot find ineffective assistance on this record.
B. Appointed Counsel Fees.
Defense counsel likewise failed to raise defendant’s challenge to the fee reimbursement order below. It has been held that a challenge to a defendant’s ability to pay fee reimbursement need not be raised at trial because it is essentially a challenge to the sufficiency of the evidence. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) This seems to conflict, however, with Gibson, cited above, which distinguished a challenge to the sufficiency of the evidence of ability to pay from a challenge to the sufficiency of the evidence to support a conviction and concluded that the former can be forfeited. (People v. Gibson, supra, 27 Cal.App.4th at pp. 1468-1469.)
It has also been held, however, that a challenge to a defendant’s ability to pay a fee reimbursement order need not be raised at trial for a different reason: Because trial counsel’s fees are involved, trial counsel has an inherent conflict of interest. (People v. Viray, supra, 134 Cal.App.4th at pp. 1215-1216.) We agree with this reasoning.
Turning to the merits, then, we must conclude that the trial court erred. Penal Code section 987.8, subdivision (b) requires the trial court to “make a determination of the present ability of the defendant to pay all or a portion of the cost” of appointed counsel. “Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.” (Id., subd. (g)(2)(B).) Here, defendant waived a probation report, and as a result, there was no evidence of his financial condition; a fortiori, there was no evidence of any unusual circumstances.
Under the rationale of Viray, we cannot deem his waiver of a probation report to be a forfeiture, either.
The People argue that the error was harmless because defendant has not claimed that he would have forgone the services of appointed counsel, that the amount was unreasonable, or that he lacked the ability to pay. They rely on People v. Smith (2000) 81 Cal.App.4th 630. There, however, the error was lack of notice (id. at pp. 636-639), not lack of evidence of the ability to pay. Indeed, the trial court ordered the reimbursement paid from funds that had previously been seized from the defendant. (Id. at pp. 633, 636.) The court stated: “[A]ppellant has not argued, and the record before us does not demonstrate, that he was prejudiced by the lack of fully compliant notice.... Appellant does not suggest that he would have foregone representation by appointed counsel had he been advised of the possibility that he might have to pay all or a portion of the costs of those services. In addition, he does not contend that he was denied a hearing on his ability to pay, that he lacked the ability to pay for his legal representation, or that the amount of reimbursement ordered by the court was erroneous.” (Id. at pp. 638-639.) By contrast, a defendant claiming insufficiency of the evidence is not required to demonstrate prejudice by claiming or showing that sufficient evidence did not exist.
In any event, defendant does in fact claim that, if the trial court had held the appropriate hearing, it would have found that he lacked the ability to pay. In light of the presumption that a person sentenced to state prison lacks the ability to pay, and in the absence of any evidence of unusual circumstances, this seems at least reasonably probable.
This brings us to the appropriate appellate remedy. The People ask us to remand for a redetermination of defendant’s ability to pay. Defendant does not claim that this would constitute double jeopardy (and thus he has forfeited any such claim). He argues only that the failure to hold the appropriate hearing constituted a violation of due process, and that a violation of due process somehow precludes a remand. He cites no authority for this proposition, and we have found none. To the contrary, our Supreme Court has held that, when a fee reimbursement order has been made without notice and a hearing, a remand is the appropriate remedy. (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.)
Accordingly, we will remand for reconsideration of the fee reimbursement order.
IV
DISPOSITION
The judgment is reversed, solely with respect to that portion of the judgment that ordered defendant to pay $150 toward appointed counsel fees. The matter is remanded with directions to reconsider the reimbursement of appointed counsel fees. In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.