Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB03789. Ronald M. Christianson, Judge. Affirmed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant and appellant Israel Hernandez appeals after the trial court denied his motion to modify the restitution fine imposed on him after his conviction of second degree murder. We affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY
In February 1994, defendant stabbed and killed Andrew Medrano. Medrano had formerly had a relationship with defendant’s girlfriend, and he and defendant quarreled over her. The argument ended when defendant stabbed Medrano, who staggered into the street and fell. He died of his wounds a few hours later.
In January 1995, a jury convicted defendant of second degree murder and found true a special allegation that he had personally used a deadly weapon in the commission of the offense. The court sentenced defendant to an indeterminate prison term of 16 years to life (15 years to life for the murder, plus one year consecutive for the weapon allegation). The court also ordered defendant to pay a restitution fine of $10,000.
For the next dozen years or so, defendant did and said nothing about the restitution fine the court had imposed on him. In March 2008, he moved the court to reduce the restitution fine to the minimum $200, on grounds that the sentencing court had not taken into consideration defendant’s ability to pay. The trial court denied the motion without comment.
Defendant now appeals. He contends that the court’s restitution order was improper or invalid. He further argues that his trial and appellate counsel rendered constitutionally ineffective assistance for failing to raise the restitution fine issue either at sentencing below or on his appeal from the conviction.
ANALYSIS
I. Standard of Review
Defendant’s argument depends upon the construction and reconciliation of various statutory provisions which were in effect at the time defendant committed the crime, during the time his appeal was pending, and at the present time. Because the main argument rests upon issues of statutory construction, we review those issues independently. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)
Setting a specific amount of restitution within the given range is a matter over which the trial court has broad discretion; we review that determination for abuse of discretion. (People v. Urbano (2005) 128 Cal.App.4th 396, 406.)
II. The Court Properly Denied Defendant’s Motion to Modify the Restitution Fine
Defendant argues that the provisions of Government Code former section 13967, subdivision (a) (Stats. 1992, ch. 682, § 4, pp. 2922-2923), which were in effect on the date he committed the crime (i.e., Valentine’s Day, 1994), provided for imposition of a restitution fine “subject to the defendant’s ability to pay.” He argues that the trial court erred in imposing the maximum fine below because it did so without taking into consideration his ability to pay.
As defendant acknowledges, however, Penal Code former section 1202.4, as it existed at the same time, provided: “(a) In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant’s present ability to pay.” (Stats. 1990, ch. 45, § 4, p. 261, italics added.)
In People v. Frye (1994) 21 Cal.App.4th 1483, the Court of Appeal harmonized the two statutes, holding that, while a trial court imposing a restitution fine must consider a defendant’s ability to pay, it need not be confined to the defendant’s present ability to pay, but could consider the defendant’s ability to pay in the future. (Id. at p. 1485.)
Defendant contends that “Frye got it wrong by ignoring well established rules of statutory construction. [¶] The fact is the two statutes could not be reconciled as they said exactly opposite things.” It is defendant who has “got[ten] it wrong,” however. Former Government Code section 13967, subdivision (a) stated in part: “[I]f the person is convicted of one or more felony offenses, the court shall impose a... restitution fine of not less than two hundred dollars ($200), subject to the defendant’s ability to pay, and not more than ten thousand dollars ($10,000).” The 1992 amendment had just increased the minimum mandatory restitution fine from $100 to $200. The Frye court found that the “legislative history obviously links the increase in the minimum fine with a defendant’s ability to pay.” (People v. Frye, supra, 21 Cal.App.4th 1483, 1486.) Penal Code former section 1202.4 contained somewhat different language, however, stating expressly that a restitution fine ordered under Government Code section 13967, “shall be ordered regardless of the defendant’s present ability to pay.” (Italics added.)
As the Frye court determined, consonant with established standards of statutory construction, including first resort to the words of the provisions themselves, disregard of a defendant’s “present ability to pay” does not conflict with a provision requiring an assessment of “ability to pay.” Rather, the logical conclusion is that, “in determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.” (People v. Frye, supra, 21 Cal.App.4th 1483, 1487.)
“Ability to pay does not necessarily require existing employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785.) The court may therefore properly consider a defendant’s future prospects or other resources.
Defendant further argues that there was no evidence to support a determination that he had the ability to pay a $10,000 restitution fine, inasmuch as the court found on the record that he did not have the present ability (at the time of sentencing) to reimburse the county for court-appointed attorney fees or to pay for the presentence investigation report.
To the contrary, however, the probation report at the time of sentencing indicated that defendant had some special training as a machinist, and he had been previously employed in a landscaping business. His sentence, an indeterminate term of 16 years to life in prison, with the possibility of release on parole (for life), did not preclude his future earning ability. Presumably, at the time of sentencing, he would have had an indefinite ability to earn from his prison work assignments. That his own subsequent conduct landed him in a segregated housing unit and deprived him of a work classification allowing him to earn wages was a matter entirely within his own control, and unknown to the court at the time of sentencing.
Defendant’s motion sought to take advantage of ameliorative amendments to Penal Code section 1202.4, subdivision (d). Those amendments provide: “In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum, the court shall consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.” These ameliorative provisions do not alter the result.
Here, the seriousness and gravity of the crime were extreme: murder, by which defendant deprived a human being of his life, and his family of the earnings, caring, companionship and other benefits of the life of their loved one. The callousness and extreme effect of the crime warranted much more than the minimum restitution fine. Defendant faced an extensive period of correction and rehabilitation, and he possessed skills and capacities to bring to bear to pay the restitution fine imposed. Under consideration of all the relevant factors, there is no reason to expect that the restitution fine imposed would have been any different had the court expressly adverted to defendant’s future financial prospects and ability to pay.
Under the totality of the circumstances, defendant failed to show that the trial court erred in imposing a restitution fine of $10,000 at the time of original sentencing.
This also provides sufficient answer to defendant’s contention that his trial and appellate counsel were deficient in failing to raise this issue at the time of sentencing or during his original appeal. Inasmuch as the $10,000 was fully warranted, defendant cannot show any prejudice, even if his counsels’ actions are deemed professionally deficient. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674]; People v. Pope (1979) 23 Cal.3d 412, 423-424.)
DISPOSITION
The trial court properly denied defendant’s motion to modify the restitution fine. The order denying the motion is affirmed.
We concur: Ramirez, P.J., Hollenhorst, J.