Opinion
F074971
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. SERGIO HEREDIA, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F11906719)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
On February 10, 2016, defendant Sergio Heredia was charged in an amended information with one count of forcible rape, in violation of Penal Code section 261, subdivision (a)(2), one count of sexual penetration by force, in violation of section 289, subdivision (a)(1)(A), and one count of unlawful sexual intercourse, in violation of section 261.5, subdivision (c).
All statutory references are to the Penal Code unless otherwise indicated.
Trial commenced on February 10, 2016. On February 19, 2016, defendant pled nolo contendere to sexual battery by restraint, in violation of section 243.4, subdivision (a), and unlawful sexual intercourse, in violation of section 261.5, subdivision (c). Defendant agreed to a four-year lid, and registration pursuant to section 290. All other charges were dropped. Defendant remained on bail release pending sentencing.
A probation report received by the superior court on April 14, 2016, indicated defendant was employed at the time. On April 21, 2016, defendant terminated his relationship with his private trial attorney, and was appointed a public defender. On December 14, 2016, pursuant to the plea agreement, defendant was sentenced to the middle term of three years for the sexual battery, and two years for the unlawful sexual intercourse, to run concurrently.
Defendant was awarded five days' time credit, and ordered to pay a $900 restitution fine pursuant to section 1202.4, an $80 courtroom security fine pursuant to section 1465.8, subdivision (a)(1), a $60 assessment fee pursuant to Government Code section 70373, and a probation report fine of $296 pursuant to section 1203.1b. Defendant was also ordered to pay an additional $900 restitution fine pursuant to section 1202.45, but this fine was suspended unless defendant's parole is revoked. Finally, defendant was ordered to pay a $300 fine pursuant to section 290.3, but the court found "that the defendant does not have the ability to pay that fine and that [the] $300 fine is suspended."
No separate hearing was held to determine defendant's ability to pay the section 1203.1b or 290.3 fines. However, defendant spoke at his sentencing hearing regarding his financial situation. Defendant stated he was, at the time, unemployed and receiving social services. Defendant is otherwise a 55-year-old veteran, who served in the military for approximately 10 years, and taught at a local high school.
The court stated it had read and considered the probation officer's report. Although defendant objected, the court found he did have an ability to pay the section 1203.1b fine, stating, "the Court has found that once [defendant] gets out, he will have an ability to pay, and he is to make arrangements once he is out to make arrangements to pay at that time and work with the Action Center."
Defendant filed a timely appeal, arguing the $296 fine pursuant to section 1203.1b and the suspended $300 fine pursuant to section 290.3 must be stricken because he does not have the ability to pay them.
We find the section 1203.1b fine is supported by substantial evidence, and order the abstract of judgment amended to reflect imposition of the fine. The Attorney General properly concedes the section 290.3 fine must be stricken, and we so order.
DISCUSSION
We omit the traditional statement of facts since the facts are not necessary to a resolution of the issues raised on appeal.
Section 1203.1b, subdivision (a) states, in relevant part, "[i]n any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, ... the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision, conditional sentence, or term of mandatory supervision, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203."
Section 1203.1b, subdivision (b) states, "[t]he court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative."
Section 1203.1b, subdivision (e) states, "[t]he term 'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the preplea or presentence report, processing a jurisdictional transfer pursuant to Section 1203.9, processing requests for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, and probation supervision, conditional sentence, or mandatory supervision, and shall include, but shall not be limited to, the defendant's:
"(1) Present financial position.
"(2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position.
"(3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing.
"(4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs."
A defendant's ability to pay a fine is reviewed for substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 351; People v. Kozden (1974) 36 Cal.App.3d 918, 920.) Any finding of a defendant's future financial position must also be limited to the one-year period from the date of the hearing. (§ 1203.1b, subd. (e)(2).) In this case, defendant stated he was unemployed and receiving social services as of December 14, 2016. There were no factual findings made regarding defendant's income within one year of December 14, 2016.
In People v. Hoover (2011) 199 Cal.App.4th 1470 (Hoover), the defendant was assessed a section 1203.1b probation investigation fine of $1,375 and a $90 per month probation supervision fine (for three years' probation), and ordered to pay $30 per month toward that fine. (Hoover, at p. 1472.) The defendant argued he did not have an ability to pay the fine because he had been out of work since 2009, and when he was working, he was making only $9.50 per hour. (Ibid.) The trial court found the defendant did have an ability to pay after reviewing the probation report, the defendant's statement of assets, took into account that the defendant had a car and a cell phone, lived in an expensive area, and had no debts. (Ibid.) On appeal, the Second District Court of Appeal found the defendant's possession of a cell phone, a car and living in an expensive area was sufficient evidence to support the fine. The appellate court further noted, "[H]ere the total probation fees are $4,615. That is not an insurmountable burden, even at the minimum of $30 per month." (Id. at p. 1473.)
In this case, defendant does have a bachelor's degree in education from Fresno State, is a veteran with approximately 10 years' experience in the military, was released on bail during the pendency of his case, and was a business owner. Defendant also was able to hire a private attorney, and in April 2016, defendant was employed. Likewise, the probation report fine defendant is required to pay is only $296, far less than the fine in Hoover. Regardless of defendant's future financial position, all of these constitute "other factors," which tend to bear upon defendant's financial capability to reimburse the county the $296 probation report fine, and constitute substantial evidence in support of imposing the fine.
Defendant further argues the suspended section 290.3 fine must be stricken. Section 290.3 states, "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine."
The superior court imposed a $300 fine pursuant to section 290.3, but suspended it because "the defendant does not have the ability to pay the fine." Section 290.3 allows the fine to be imposed unless the court determines the defendant does not have an ability to pay, a determination the superior court made in this case. Therefore, the fine should not have been imposed. The Attorney General concedes this fine should be stricken.
Finally, although the superior court made an oral pronouncement imposing the section 1203.1b fine, this fine is not listed on the abstract of judgment. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zachery (2007) 147 Cal.App.4th 380, 385.) The abstract of judgment must be amended to reflect the imposition of the section 1203.1b fine.
DISPOSITION
The $300 restitution fine imposed pursuant to Penal Code section 290.3 is ordered stricken. In all other respects, the judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment reflecting the imposition of the section 1203.1b fine and that the section 290.3 fine is stricken and to forward a copy to the appropriate authorities.