Opinion
E051496 Super.Ct.No. FMB1000126
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN JOSEPH CRNOGORAC, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Steven Joseph Crnogorac of willfully inflicting corporal injury upon his spouse (Pen. Code, § 273.5, subd. (a)) and he admitted he had a prison prior (§ 667.5, subd. (b)). The trial court selected the aggravated term of four years and added one year for the prior, thereby imposing a total prison sentence of five years. Defendant contends there was insufficient evidence to support orders requiring him to pay toward the costs of appointed counsel and a presentence report. He also contends he is retroactively entitled to an additional day of conduct credit due to the amendment of section 2933, subdivision (e). We affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The facts underlying defendant's conviction are not relevant to the resolution of the issues raised.
Defendant is a retired construction worker with no assets and no debts; at least through the period of the preparation of the probation officer's report, he had been receiving a monthly Social Security benefit of $961.
On July 29, 2010, defendant was sentenced. Among the orders were "Appointed counsel fees are $150. Investigation costs are $505." The probation officer's report had recommended the trial court select the aggravated prison term and find that defendant had the ability to pay appointed counsel fees and presentence investigation costs. The trial court also granted "credit for time served [of] 445 days. That's 223 actual, plus 222 conduct." During the sentencing hearing, defendant's counsel addressed the length of the prison term to be imposed, but did not object to, or mention, the probation officer's recommendation regarding reimbursement for appointed counsel fees and presentence investigation costs.
ABILITY TO PAY
Defendant contends there was insufficient evidence to support orders requiring him to pay toward the costs of appointed counsel (§ 987.8) and preparation of a presentence report (§ 1203.1b). The People contend defendant has forfeited these contentions. We hold that substantial evidence existed to support the trial court's orders.
"Subdivision (b) of section 987.8 . . . provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him." (People v. Flores (2003) 30 Cal.4th 1059, 1061.) "Subdivision (g)(2)(A), (B) of section 987.8 defines ' "[a]bility to pay" ' as including a defendant's 'reasonably discernible future financial position,' as well as his 'present financial position,' but stipulates that '[i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position.' " (Id. at p. 1063, fn. 2.) "[T]here is a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs. Subdivision (g)(2)(B) of section 987.8 provides in pertinent part: '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. at p. 1068.)
The framework for the imposition of fees for presentence investigation costs under section 1203.1b is similar to, but slightly different from, appointed counsel fees under section 987.8. For instance, section 1203.1b does not require a finding of unusualness in order for a defendant to be ordered to pay fees when they are sentenced to prison. (Cf. § 1203.1b, subd. (e)(2), with § 987.8, subd. (g)(2)(B).) Section 1203.1b also permits the trial court to look forward one year from the hearing rather than the six months permitted in section 987.8. (Cf. § 1203.1b, subd. (e)(2), with § 987.8, subd. (g)(2)(B).)
"[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of the fine and demonstrate why it should not be imposed." (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 [§ 290.3 fine].) Thus, "sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant's ability to pay a fine [citations]." (People v. Butler (2003) 31 Cal.4th 1119, 1130, (conc. opn. of Baxter, J.); see also People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 (Valtakis) ["failure to object in the trial court to statutory error in the imposition of a probation fee under section 1203.1b [forfeits] the matter for purposes of appeal"]; but see People v. Viray (2005) 134 Cal.App.4th 1186, 1215 [no forfeiture for the "failure of a trial attorney to challenge an order concerning his own fees" under § 987.8].)
The parties have ably addressed the forfeiture issues; however, even if defendant has not forfeited his claims, substantial evidence supports the trial court's orders. This is because the probation officer's report recites defendant's monthly income as "SSI-961.00." Defendant notes "there is no indication whether this income would continue after he was sentenced to state prison and the report does not show [his] expenses." While Social Security payments may be suspended upon incarceration (20 C.F.R. § 404.468 (2011)), he was receiving payments while in presentence custody and a single one of those payments would more than cover the challenged amounts. To the extent his costs may have exceeded this income, he failed to produce any evidence of his costs at the sentencing hearing despite being put on notice by the probation officer's report that the imposition of the challenged fees was being sought. Accordingly, substantial evidence supports the trial court's implied findings of defendant's ability to pay.
Defendant relies upon People v. Lopez (2005) 129 Cal.App.4th 1508, 1537, for the proposition that an express finding of unusualness, as to his ability to reimburse appointed counsel fees, was required because he was sentenced to prison. Even if we were to accept this holding from Lopez, the holding would be "unnecessarily broad in these circumstances. The basis for the holding is a portion of subdivision (g)(2)(B) of section 987.8, which states that a defendant who has been sentenced to state prison is deemed not to have a 'reasonably discernible future financial ability' to repay defense costs in the absence of 'unusual circumstances.' Although Lopez held that this statement applies generally to the obligation to reimburse defense costs, its placement within subdivision (g)(2)(B) suggests it was intended only to apply to the determination of the prisoner's future prospects for income, the specific concern of subdivision (g)(2)(B). The provision does not appear to apply to the prisoner's 'present financial position' (§ 987.8, subd. (g)(2)(A)) or the 'other factor or factors which may bear upon the defendant's financial capability to reimburse the county' (id., subd. (g)(2)(D)), the critical determinations in these circumstances." (People v. Polk (2010) 190 Cal.App.4th 1183, 1211.)
As indicated above, defendant's benefits would be suspended while he served his prison term. However, he had no debts and had been collecting $961 a month for the several months he spent in presentence local custody. Thus, his monthly benefit check was not relevant to his future financial position under section 987.8, subdivision (g)(2)(B), which requires a finding of unusualness, but instead went to his present financial position or financial capability to reimburse the county under subdivision (g)(2)(A) or (g)(2)(D), which do not require a finding of unusualness.
RETROACTIVITY
Section 4019 permits defendants to earn credit for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Under the version of section 4019 in effect at the time of sentencing, defendant was eligible to earn two days of conduct credit for every two days of presentence custody. (Former § 4019, subd. (f).) He was awarded full credits, and thus was granted 222 section 4019 conduct credits for his 223 days in presentence local custody. On September 28, 2010, during the pendency of this appeal, amendments to sections 4019 and 2933 became operative; section 4019 was restored to an earlier ratio that provides two days of conduct credit for every four days. (Stats. 2010, ch. 426 §§ 2, 5.)
Former section 2933, subdivision (e), provided credit for time spent in local custody after the date a defendant was sentenced to prison. After the September 28, 2010 amendment, subdivision (e) now provides: "Notwithstanding Section 4019 . . . a prisoner sentenced to the state prison . . . for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits . . . are applicable to the prisoner." (§ 2933, subd. (e)(1).) It also provides that such credit may not be received "if it appears by the record that the prisoner has refused to satisfactorily perform labor . . . or has not satisfactorily complied with the reasonable rules and regulations." (§ 2933, subd. (e)(2).) Lastly, "Section 4019, and not this subdivision, shall apply" for sex offenders, those committed for a serious felony, and those with a prior conviction for a serious or violent felony. (§ 2933, subd. (e)(3).)
Defendant contends he is retroactively entitled to the one-for-one credits of section 2933 and, thus, he should be granted a single additional day of conduct credit. Defendant bases his claim both on equal protection grounds as well as on the interpretive rule of In re Estrada (1965) 63 Cal.2d 740. The People contend that the amendment is prospective only. The issue of the retroactivity of recent amendments to the custody credit scheme has split our sister Courts of Appeal and is pending review in our Supreme Court; the bulk of the cases pending review concern the analytically analogous, as to both equal protection and the applicability of Estrada, January 25, 2010 amendment of section 4019, but our Supreme Court has also granted review in cases applying section 2933. As our Supreme Court will have the last word on this subject, we discuss the issue only summarily.
Confusingly, the People also raise arguments about the retroactivity of prior amendments to section 4019 or about the applicability of the not-then-operative section 2933 to defendant's sentencing hearing.
See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 (lead § 4109 case); In re Kemp (2011) 192 Cal.App.4th 252, review granted April 13, 2011, S191112 (§ 2933 retroactive based on reasons used by same court as to § 4019).
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The bill amending section 2933 did not contain a saving clause regarding section 2933, i.e., a clause stating that the amendment shall have prospective application only. (Stats. 2010, ch. 426, § 1.) However, as an amendment to the Penal Code, the amendment of section 2933 " 'is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753; see also § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"]; In re E.J. (2010) 47 Cal.4th 1258, 1272 [" '[S]ection 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted "unless express language or clear and unavoidable implication negatives the presumption." [Citation.]' [Citation.] '[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application' "].) Neither the bill that amended section 2933 nor its legislative history contains such a clear and unavoidable implication.
We recognize that, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (In re Estrada, supra, 63 Cal.2d at p. 748.) However, presentence conduct credits are not a mitigation of punishment. They are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405.)
We also reject the notion that applying conduct credit increases prospectively violates equal protection. This is because the purported equal protection violation is temporal and the distinction is thus rational as "'[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 189-191 [" 'punishment-lessening statutes given prospective application do not violate equal protection' "]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)
Accordingly, we hold that defendant is not retroactively entitled to an additional day of conduct credit due to the amendment of section 2933 during the pendency of this appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.