Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF015760, J. Thompson Hanks, Judge. Affirmed.
Susan S. Bauguess, 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, Steve Oetting and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Alan Michael Roldan (defendant) contends that: (1) the trial court abused its discretion by denying his Romero motion; (2) the court failed to award him all the custody credits to which he was entitled; (3) the court erred in imposing various fines and fees without first determining his ability to pay them; (4) or, in the alternative, his trial counsel was ineffective for failing to object to the fines and fees. We find no merit in any of defendant’s arguments and will affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The facts are taken from the preliminary hearing transcript of March 9, 2007.
On February 27, 2006, Riverside County Sheriff’s deputies responding to a domestic violence call to a home in Lake Elsinore found Magdalena M., defendant’s fiancée and mother of his two children, on the floor crying and holding her knee. She told the deputies that defendant had come home drunk and had hit her several times, knocking her down and causing her to bump her head. When she went to bed to avoid him, he got on top of her, put his knee in her chest and his arm around her neck, and choked her until she lost consciousness. Deputy Rafael Casillas saw redness on the victim’s neck, swelling of her left knee, and a bruise on her arm.
An information filed March 23, 2007, charged defendant with three felonies: infliction of corporal punishment on a spouse, having been previously convicted of the same offense (Pen. Code, § 273.5, subd. (e)(1), count 1); assault with great bodily injury (§ 245, subd. (a)(1)); and willful and unlawful use of force with infliction of serious bodily injury (§ 243, subd. (d)). The information further alleged that defendant had been previously convicted of the crime of robbery (§ 211) within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
On January 17, 2008, defendant pled nolo contendere to all charges and admitted the prior “strike.” The court set sentencing for February 29, 2008, and referred him to probation for a presentence investigation report. On February 29, the matter was continued to March 28, 2008.
The presentence probation report, completed February 20 and filed March 28, 2008, detailed defendant’s personal and criminal history and his attitude about his current offense. In addition to his robbery prior, defendant had two convictions, both in 2004, for domestic violence against Magdalena M. In his interview with the probation officer, defendant minimized the robbery as “shoplifting” and blamed the victim for the domestic violence incidents. He said he had pled guilty to the current offense only for the sake of his children and did not believe he deserved any incarceration—not even “one day in jail”—for his actions. The face page of the report indicated that defendant had finished high school, that he had attended the Phoenix Institute and that he had an associate’s degree, and that his income was $2,000 per month. Defendant told the probation officer about his business installing security and sound systems and how well it was doing. He said the job allowed him to pay $800 per month in child support. Magdalena M. told the probation officer that defendant was paying her $150 per week and that he had been regular with his payments for the past nine months.
The probation report concluded that defendant had unaddressed anger management and alcohol problems and little insight into his own behavior. Weighing the fact that his crimes were numerous and increasing in seriousness against the fact that his prior performance on probation had been “satisfactory,” the report recommended the low term. The report also recommended that defendant pay the cost of the presentence report up to a maximum of $318, that he pay booking and court security fees of $110 and $20, respectively, and that he pay restitution and parole revocation fines of $600 each.
On March 28, 2008, the trial court denied defendant’s motion to strike his prior “strike” conviction pursuant to the court’s discretionary power under section 1385, and explained why it thought defendant fell within the spirit of the “Three Strikes” statute: “[I]f we simply had the prior strike in a vacuum, I think your position would be quite strong with regards to the striking and granting of the Romero motion, but we don’t. In fact, what exacerbates the situation is that he twice was convicted with regards to this victim before this incident and he was on probation for those events. . . . I think that he does fall within the spirit of what the strike law was for.”
The court then sentenced defendant to four years in state prison: the low term of two years for count 1, the principal count, doubled because of the “strike” prior; plus the low term of two years each for counts 2 and 3, stayed pursuant to section 654. The court set the section 1202.4 restitution fine and the section 1202.45 parole revocation fines at $600 each. As recommended in the probation report, the court also ordered defendant to pay the cost of the report in an amount not to exceed $318, a $110 booking fee, and a $20 court security fee. Defendant was awarded four days of custody credit. He did not object to any part of the sentence.
DISCUSSION
Romero motion:
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that a court has discretion under section 1385, subdivision (a), to strike prior “strikes” “in furtherance of justice.” (Id. at pp. 529-530.) General principles for the exercise of this discretion “require[] consideration both of the constitutional rights of the defendant, and the interests of society.” (Id. at p. 530.) A trial court abuses its discretion if it dismisses strikes based solely on judicial convenience, court congestion, the defendant’s willingness to plead guilty, or personal antipathy to the Three Strikes law, while disregarding the defendant’s background, the nature of his present offenses, and other individualized considerations. (Id. at p. 531.)
The court provided additional guidelines for exercising the discretion to strike prior “strikes” in People v. Williams (1998) 17 Cal.4th 148, 159-161. In making or reviewing a decision to strike a prior “strike” offense, a court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) The court cautioned that the standard for review of an exercise of discretion is “deferential,” but not empty, requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts. (Id. at p. 162.) A decision to strike a prior conviction remote in time is an abuse of discretion where the defendant has not led a crime-free existence since the time of his last conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Here, there is good evidence in the record that the trial court considered defendant’s background, character, and prospects when it exercised its discretion to deny his Romero motion. The court had received and read the probation report, which documented defendant’s criminal history in the years since his robbery conviction: his repeat offenses against the current victim; his ongoing denial of responsibility for the crimes; his lack of insight into his own behavior; and his persistent pattern of blaming the victim. The court explained that it was basing its decision to deny his motion largely on the fact that defendant had not led a crime-free life since his “strike” conviction for robbery in 1998. He had twice before been convicted of abusing this victim and was on probation for those incidents at the time of the present crime.
In view of all these well-documented and undisputed facts, we conclude that the trial court did not abuse its discretion in concluding that defendant fell within the spirit and purpose of the Three Strikes law.
Custody credits:
Defendant complains that he should have received two more days of presentence custody credit. As the People point out, defendant is incorrect. He was apparently not committed until four days before he was sentenced. Section 4019, subdivision (e), identifies a six-day threshold for the award of good conduct credits. Defendant had not been incarcerated long enough before he was sentenced to trigger the benefit of the statute.
It is unclear from the record we have exactly when defendant was committed to custody. The minute order of February 29, 2008, indicates he was still out on bail. The minute order of March 28, 2008, indicates that he was remanded to custody. Both parties, however, agree that defendant served four days in custody before he was sentenced.
Fines, costs, and fees:
Defendant also complains that the court erred by not determining his ability to pay before imposing sections 1202.4 and 1202.45 restitution and parole revocation fines or before imposing the cost of the presentence probation report, and booking and court security fees.
Section 1202.4, subdivisions (a)(2) and (b)(1), together require the sentencing court to impose a restitution fine of at least $200 on persons convicted of a felony in the State of California. The amount of the fine is to be set at the discretion of the court and may be determined as the product of $200, multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of his felony convictions. (§ 1202.4, subd. (b)(2).) Subdivisions (c) and (d) of the statute make it clear that the fine is mandatory unless the court finds an extraordinary and compelling reason not to impose it. And although a defendant’s inability to pay is one factor a court may consider in setting the amount of the fine above $200, an inability to pay is not by itself to be considered an extraordinary and compelling reason not to impose the required fine. (§ 1202.4, subds. (c), (d).) “Consideration of a defendant’s inability to pay may include his or her future earning[s],” but, “a defendant shall bear the burden of demonstrating [the] inability to pay. . . . A separate hearing for the fine shall not be required.” (§ 1202.4, subd. (d).) In determining whether a defendant has the ability to pay a restitution fine, a court may consider not only his present status, but his future ability to pay, including his ability to earn wages while in prison and after his release. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 (Hennessey).) In the absence of an objection below, a defendant cannot claim for the first time, on appeal, that restitution fines were imposed without findings or evidence of ability to pay. (People v. Butler (2003) 31 Cal.4th 1119, 1130; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 (Valtakis).)
Here, defendant waived his claim of inability to pay the restitution and parole revocation fines by failing to object to them at the time they were imposed. (Hennessey, supra, 37 Cal.App.4th at p. 1836.) Even had the claim not been waived, however, it is meritless, for several reasons. First, section 1202.4 does not require the court to make an express finding regarding the factors bearing on the amount of the fine. Second, the record supports the court’s implied determination that defendant had the present ability to pay—and a likely future ability to pay—both fines. Regarding the restitution fine: according to his own account as documented in the probation report completed only a month before his sentencing, defendant was a skilled worker making $2,000 per month. His business installing security and sound systems for business and residential customers was going well and he was paying $800 per month in child support. Defendant had been out on bail during the two years between his arrest and sentencing and there was absolutely no evidence that he was unemployed during any of that time. Regarding the parole revocation fine: defendant can avoid that entirely by successfully completing parole.
This is a little different from the amount of support reported by the victim, who indicated that defendant was paying only $150 per week, or $600 per month.
Moreover, in view of his record, the fines were relatively modest and not, as defendant claims, “outside the bounds of reason.” Defendant had three felony convictions and was sentenced to a total period of incarceration of four years. As the People note, the court could have set his restitution fine at as much as $2,400 ($200 times four (years) times three (convictions)). (§ 1202.4, subd. (b)(2).) Exercising its discretion—one might even say its mercy—the court instead set the restitution fine at only $600, with a parole revocation fine of the same amount, as required by section 1202.45. In view of defendant’s financial position, reflected by the information he gave to the probation department, and in the absence of a statement that he could not afford to pay the fines, the court did not err in calculating or imposing them.
Similar, although not identical, reasoning applies to the presentence probation report cost and booking and court security fees. It is true that defendant again failed to object to any of these items and thereby arguably waived the claims. (Valtakis, supra,105 Cal.App.4th at pp. 1070-1071.)
However, Penal Code section 1203.1b contains explicit requirements that the probation officer and the court inform a defendant who is the subject of a presentence probation investigation of his right to a hearing and to a court determination of his ability to pay costs and fees. (Pen. Code, § 1203.1b, subds. (a), (b).) Similarly, Government Code section 29550.2 (regarding the criminal justice administrative or “booking” fee), specifies that the fee is to be imposed “if the person has ability to pay.” (Gov. Code, § 29550.2, subd. (a).) A court’s determination of the defendant’s ability to pay is to be based on his present financial position; his “[r]easonably discernable future” financial position up to one year from the date of the hearing; the likelihood that he will be able to obtain employment within one year of the hearing date; and “any other factor or factors” that may bear upon the defendant’s ability to reimburse the county for the costs. (Pen. Code, §1203.1b, subd. (e)(1)-(e)(4).) A finding of ability to pay may be explicit or implicit, provided it is supported by substantial evidence. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395; People v. Phillips (1994) 25 Cal.App.4th 62, 70.)
Here, there is no record of defendant having been informed of his right to an evidentiary hearing regarding his ability to pay the presentence probation report costs or the booking and court security fees. But as we have explained, the record contained good evidence that he had the ability to pay these recommended minimal amounts. By his own report, he was making good money and was regularly meeting his financial obligations.
Assuming without deciding, however, that the probation officer and the court erred in not informing defendant of his right to an evidentiary hearing to contest the amounts, we turn to the related questions of whether the omission resulted in prejudice to defendant and whether his attorney’s failure to object to the omission constituted ineffective assistance. Prejudice is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Ineffective Assistance of Counsel:
Defendant argues that if we find that he waived his claims of error as to any of the various fines and fees by failing to object below, his counsel was ineffective.
To establish ineffective assistance of counsel, a defendant must show: (1) that his counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient representation subjected the defendant to prejudice or “a reasonable probability” that the outcome of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688-689, 694; In re Jones (1996) 13 Cal.4th 552, 561.)
Here, there is virtually no probability that, if counsel had objected to the fines or the fees and a separate hearing been held, the result would have been more favorable to defendant. Defendant insists that “there was no indication he was working during [the period he was out on bail], or if he was working, how much he was actually making during that period.” Defendant misreads his own record. At the time of his presentence probation interview in February 2008, he told the interviewer that he had a good job; that he was paying child support; that he had education and what was essentially a marketable skill. The victim told the probation officer that defendant had been paying child support regularly. Defendant and his attorney both had access to the probation officer’s report demonstrating that he was financially stable and it is likely that both knew that an evidentiary hearing on the matter would have been an unnecessary waste of time. This, not deficient representation, most likely explains counsel’s decision not to object to the terms of the sentence. Moreover, there was no reason to believe defendant could not work for prison wages during the period of his incarceration or would not resume working after his release. (Hennessey, supra,37 Cal.App.4th at p. 1837.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., McKINSTER J.