Opinion
F072352
02-03-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ARREAZOLA, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR051684)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
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Appellant Timothy Arreazola pled guilty to assault by means of force likely to produce great bodily harm (Pen. Code, § 245, subd. (a)(4)) and was placed on probation for three years.
All statutory references are to the Penal Code unless otherwise noted.
On appeal, Arreazola contends the court's finding that he had the ability to pay certain fees is not supported by substantial evidence. We affirm.
FACTS
On May 16, 2015, Arreazola approached Fernando Alonzo at a SaveMart supermarket in Madera and called him a "scrap." After following Alonzo around, Arreazola punched him in the face. When Alonzo fought back, a man who was with Arreazola struck Alonzo on the head with a wine bottle knocking him out and opening a one-inch gash on his head.
On July 9, 2015, the Madera County District Attorney filed an information against Arreazola charging him with assault with a deadly weapon (§ 245, subd. (a)(1)), a great bodily injury enhancement (§ 12022.7, subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)).
On July 29, 2015, the probation department filed a pre-plea probation report that recommended the court impose several fees and fines including a $73 per day fee for the cost of court-ordered confinement (§ 1203.1c, subd. (a)), a $36 per month probation supervision fee (§ 1203.1b, subd. (a)), a $750 felony presentence report fee (ibid.), and a $108.19 booking fee (Gov. Code, § 29550.2) to the City of Madera.
On August 6, 2015, the prosecutor amended count 1 to charge Arreazola with assault by means of force likely to produce great bodily injury. Arreazola then pled guilty to that charge in exchange for the dismissal of the two enhancements and a grant of three year's felony probation.
Afterwards, in response to questioning by the court, Arreazola acknowledged that he had previously been employed part time as a maintenance worker earning $10 an hour. The court then found that he had the "ability to pay fines." When defense counsel argued that Arreazola did not have the ability to pay the $750 probation report fee because of the other fines he had to pay and because his employment had been part time, the court noted that Arreazola had three years to pay that fee. Defense counsel acknowledged that he did but, nevertheless, asked the court to strike the probation report fee. The court, however, declined to strike this fee and it then suspended imposition of sentence and placed Arreazola on formal felony probation for three years. The court also ordered Arreazola to serve 78 days in custody, with credit for 78 days served, and to pay the fines and fees recommended by the probation officer. Arreazola was released from custody that day.
On September 2, 2015, Arreazola appeared in court with defense counsel. When the court stated it did not know what counsel was requesting, counsel replied:
"What I'm asking is at the sentencing, Your Honor, I asked for the $750 presentence report to be stricken; that was not. But the reason I put this matter on calendar is I didn't note at the time of sentencing that the jail confinement cost was imposed at $5,694. The reason being was my mistake, number one. But number two, the judge didn't read the terms; he just adopted the RPO.
"That being said, I've had my client disclose to me his income. He doesn't have any income at this point. He's not employed. Before he was incarcerated he was employed. And to make a long story short, he was not paid for that work. He's still trying to fight to get paid on that. I'm asking the Court to strike that fine."
Upon further inquiry by the court, defense counsel stated that Arreazola had gone to Revenue Services, that Arreazola had to pay a total of $7,635 in fines, and that Revenue Services agreed he could pay $50 per month for several hundred months. The court replied that the only issue for the court was whether Arreazola could make a $50 payment per month and defense counsel reiterated that Arreazola did not have any income at the time. After further discussion, the court stayed Arreazola's first payment three months to January 15, 2016, and it advised Arreazola that if he had an issue at that time, he could put himself back on calendar.
DISCUSSION
The court was required to consider Arreazola's ability to pay in ordering him to pay $5,694 for the cost of his incarceration (§ 1203.1c, subd. (a)), $750 for the cost of his probation report (§ 1203.1b, subd. (a)), $36 per month for the cost of his probation supervision (ibid.), and a $108.19 booking fee (Gov. Code, § 29550.2). Arreazola contends that because he has no income or assets and is unemployed, his inability to pay these costs is manifest. Thus, according to Arreazola, the court's order requiring him to pay these fees must be reversed because the record does not contain substantial evidence that supports a finding that he had the ability to pay them. We disagree.
At the August 29, 2015, hearing Arreazola only objected to the court's finding that he had the ability to pay for the $750 cost of preparing a presentence probation report. On September 2, 2015, defense counsel complained that when he asked the court to strike the probation report preparation fee at the earlier hearing he did not realize the court also ordered Arreazola to pay $5,694 in incarceration costs and that based on Arreazola's financial status he was asking the court to strike that "fine." Defense counsel asked the court to strike only the cost of preparing the probation report. Thus, Arreazola forfeited his challenge to the court's determination that he had the ability to pay the other fees at issue. (People v. McCulloch (2013) 56 Cal.4th 589, 597 ["By 'failing to object on the basis of his [ability] to pay,' defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' "].) However, assuming Arreazola's sufficiency of evidence claim as to all the fees he now challenges is properly before us, we reject it.
A finding that the defendant has the ability to pay will be upheld if supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 70-71.) "When a court orders a defendant in a criminal case to pay certain probation fees, it may not consider a period of more than one year from the date of hearing to determine the defendant's future financial position. [§ 1203.1b.] The court, however, is not limited to one year in ordering how long a defendant must make periodic payments." (People v. Hoover (2011) 199 Cal.App.4th 1470, 1471-1472.)
"Ability to pay does not necessarily require existing employment or cash on hand." (People v. Staley (1992) 10 Cal.App.4th 782, 785.) "Where the defendant is capable of supporting himself with legitimate employment, the trial court may also consider his ability 'to find and maintain productive employment[.]' " (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377.)
Arreazola was released from custody on the day he was sentenced. Further, his probation report indicates he was only 22 years old on that date, that he is a high school graduate, and that he graduated from Pioneer Technical Center in 2012. It also indicates that he is in good physical health, did not have any mental health or substance abuse issues, and that prior to being incarcerated in this matter, Arreazola worked part time earning $10 an hour. Thus, there is nothing in the record that suggests Arreazola is physically, mentally or emotionally unable to find and maintain productive employment. Additionally, Arreazola was not married and did not have children and he did not contend he had any debts or other regular expenses. Moreover, even though the court imposed a total of $7,635 in fines and fees, it only required him to pay $50 per month toward this amount. Thus, we conclude that substantial evidence supports the court's implicit finding that Arreazola had the ability to pay the fees at issue. (Cf. People de France (2008) 84 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay fine, it would take a very long time, and the fine might never be paid].) (People v. Hoover, supra, 199 Cal.App.4th at pp. 1472-1473 [defendant's possession of a car and cellphone, and his residence in expensive area supported court's finding that defendant had ability to pay $30 per month toward $1,375 probation investigation fee and $90 monthly probation supervision fee].)
DISPOSITION
The judgment is affirmed.