Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF073163
CANTIL-SAKAUYE, J.
Defendant Curtis Miles Upthegrove pled guilty to numerous charges in connection with the methamphetamine laboratory found in his home and his possession of a loaded firearm. Sentenced to 19 years eight months, he appeals. He contends, and the People properly concede, that several modifications must be made to the judgment. Defendant also contends the trial court abused its discretion in imposing the maximum restitution fine of $10,000 and in imposing the upper term. We remand for a restitution fine hearing.
BACKGROUND
In September 2007, officers executed a search warrant on defendant’s residence. Inside defendant’s home, officers found a clandestine methamphetamine laboratory in use. Defendant was home during the search. Officers searched defendant and found him in possession of a loaded, operable.380 semi-automatic handgun. Officers also found.25 grams of methamphetamine sewn into defendant’s underwear.
Defendant pled guilty to manufacturing methamphetamine while armed with a firearm (Health & Saf. Code, § 11379.6, subd. (a); Pen Code, § 12022, subd. (c)) and with two prior convictions for manufacturing methamphetamine (Health & Saf. Code, § 11370.2, subd. (b)), maintaining a place for the manufacture of methamphetamine while armed with a firearm (Health & Saf. Code, § 11366.5, subd. (a); Pen. Code, § 12022, subd. (c)), possessing a loaded firearm while also in possession of methamphetamine (Health & Saf. Code, § 11370.1, subd. (a)), and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)) and ammunition (Pen. Code, § 12316, subd. (b)(1)). He also admitted having served two prior prison terms. (Pen. Code, § 667.5, subd. (b).) An additional charge, additional enhancements, and two subsequently filed cases were dismissed.
Hereafter, undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to an aggregate term of 19 years eight months, which included the upper term of seven years on the principal count for manufacturing methamphetamine.
DISCUSSION
I.
Victim Restitution
The trial court ordered direct victim restitution in the amount of $4,927.43. Defendant contends, and the People concede, the judgment must be modified to reduce victim restitution to $1,758.08.
The trial court’s direct victim restitution order included $3,169.35 to the California Department of Toxic Substance Control (the Department) for the cost of cleaning up defendant’s methamphetamine lab. The order also included $1,758.08 to the City of Yuba to reimburse it for the cost of the hospital treatment for the police officers who were exposed to the lab. Reimbursement to the Department was in error.
The California Supreme Court has recently held that the exclusive means by which the Department may recoup its costs of eradicating or cleaning up toxic or hazardous substances resulting from controlled substances crimes are those specified by Health and Safety Code sections 11470.1 and 11470.2. (People v. Martinez (2005) 36 Cal.4th 384, 393-394.)
Accordingly, the judgment must be modified to strike the $4,927.43 to the Department, reducing direct victim restitution to $1,758.08.
II.
Criminal Laboratory Fee
The trial court ordered defendant to pay a $150 criminal laboratory fee along with related fees and assessments. The $150 fee consisted of three separate $50 fees. Defendant contends, and the People concede, that the fine must be reduced to one $50 fee, along with its related fees and assessments, because only one of his crimes is enumerated in Health and Safety Code section 11372.5, subdivision (a).
Health and Safety Code section 11372.5, subdivision (a), requires the trial court to impose a $50 criminal laboratory analysis fee when a defendant is convicted of any one of several specified crimes. Defendant’s conviction for manufacturing methamphetamine is an enumerated crime, but none of his other offenses are enumerated in Health and Safety Code section 11372.5, subdivision (a).
Thus, the judgment must be modified to impose a single $50 criminal laboratory fee. Additionally, the related fees and assessments must be reduced as follows: $50 state penalty assessment (§ 1464, subd. (a)); $10 state surcharge (§ 1465.7); $35 county penalty assessment (Gov. Code, § 76000); $20 construction penalty (Gov. Code, § 70372); and two $5 DNA fees (Gov. Code, §§ 76104.6, 76104.7). The total amount for the criminal laboratory fee and its related fees and assessments is $175.
III.
Restitution Fine
Defendant also contends the trial court abused its discretion when it imposed the maximum restitution fine of $10,000, despite his argument that he lacked the ability to pay such a fine. We shall remand for a restitution fine hearing.
At sentencing, the trial court indicated it intended to follow the recommended formula set forth in section 1202.4, subdivision (b)(2), and impose the maximum restitution fine of $10,000. Defense counsel requested the amount be reduced to $1,000 “[i]n the interests of justice and his inability to pay.” The trial court responded that it did “not accept” the argument of inability to pay, as defendant was “going to be in prison for a long time, and as you know, the money will be withheld from his prison funds by the Department of Corrections.”
Section 1202.4, subdivision (b), requires the court to impose a restitution fine “[i]n every case where a person is convicted of a crime,” in the absence of compelling or extraordinary reasons for not imposing the fine. Subdivision (b)(1) of section 1202.4 provides that “[t]he restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony....” Subdivision (b)(2) of section 1202.4 provides a formula for calculating the restitution fine, as follows: “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.”
Section 1202.4 provides further guidance to the trial court in setting the appropriate restitution fine. While inability to pay does not justify foregoing the minimum restitution fine, it may be considered in setting the amount to be imposed beyond the statutory minimum. (§ 1202.4, subd. (c).) Factors to consider in setting the restitution fine “include[], but [are] 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.” (§ 1202.4, subd. (d).)
Here, the trial court made a specific finding that defendant had the ability to pay the fine based on the court’s conclusion that the money could be deducted from defendant’s prison funds. That finding, however, was made with questionable factual support.
The sole source of income from which the trial court found defendant could pay the $10,000 restitution fine was future prison earnings. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1487 [trial court not limited to consideration of present financial circumstances].) State inmates who perform assigned work are compensated for it. (See §§ 2700, 2801, subd. (b); Dept. of Corrections and Rehabilitation, Operations Manual, § 51120.1.) The rates of pay for work performed by prison inmates are set in California Department of Corrections and Rehabilitation Operations Manual, section 51120.6. Currently, those rates range from $12 per month to $56 per month and are subject to a statutory maximum of one-half the minimum wage. (§ 2811.) Section 2085.5 directs the Director of Corrections and Rehabilitation to deduct 20 to 50 percent from the prisoner’s wages for credit against the prisoner’s restitution fine. Under current regulations, the amount deducted by the director for that purpose is 50 percent but only 40 percent is transferred and credited toward the restitution fine. (Cal. Code Regs., tit. 15, § 3097(f).) Thus, even assuming appellant is placed in a prison job and earns the top rate of $56 per month for work performed in prison, the amount deducted for credit against his restitution fine will be only $22.40 per month. Even if he served 20 years in prison, the deduction from prison wages for credit against the restitution fine will barely exceed half ($5,376) of what the trial court imposed. Moreover, assuming defendant earns credits under sections 2931 and 2933, the amount of fine payable from prison wages will be reduced accordingly.
Thus, under the circumstances here, where there was no evidence of any source of income other than prison wages, and future deductions from prison wages were the sole basis for the trial court’s finding of defendant’s ability to pay, the finding that defendant has the ability to pay a $10,000 restitution fine is unsupported by the record.
Contrary to defendant’s contention, utilization of the statutory formula resulting in the maximum restitution fine did not result in a fine out of proportion to the circumstances and gravity of his crimes. In this, defendant’s third conviction for manufacturing methamphetamine, he was operating a clandestine lab while possessing a loaded semi-automatic handgun, making it a very serious offense. Moreover, while these charges were pending, defendant was found in possession of methamphetamine three more times and, on one of those occasions, was also found in possession of a weapon.
IV.
Upper Term
Finally, defendant argues the trial court abused its discretion when it imposed the upper term of seven years on the principal offense of manufacturing methamphetamine. We disagree.
The trial court is free to weigh quality and quantity of aggravating and mitigating factors. (People v. Roe (1983) 148 Cal.App.3d 112, 119.) Its finding of circumstances in aggravation is reviewed for substantial evidence. (People v. Gragg (1989) 216 Cal.App.3d 32, 46.) A single aggravating factor suffices to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732.)
In this case, there was sufficient evidence to support the trial court’s finding of defendant’s criminal history as an aggravating factor. As the trial court noted, defendant had at least three prior felony convictions. Two of those convictions were for manufacturing methamphetamine. He also had a prior conviction in 1999 for possessing methamphetamine, multiple convictions for Vehicle Code violations and failure to appear, and numerous violations of probation. He was discharged from parole on October 5, 2006, and committed the instant offenses less than a year later. While these charges were pending, defendant continued to commit crimes, as he was found in possession of methamphetamine three more times. These facts support the trial court’s finding of defendant’s criminal history as a factor in aggravation.
The probation report listed the following factors in aggravation: (1) his crimes demonstrated sophistication or professionalism; (2) his prior convictions are numerous or of increasing seriousness; (3) he has served prior prison terms; (4) his prior performance on probation or parole has been unsatisfactory; and (5) the offense involved the crystalline form of methamphetamine.
Defendant argues that the trial court did not adequately consider as a mitigating factor his methamphetamine addiction and the limited opportunities for treatment he had been provided. Since he did not raise his addiction and lack of previous treatment as a mitigating factor in the trial court, he may not do so now. (People v. Kelley (1997) 52 Cal.App.4th 568, 582.) In any event, the trial court “is presumed to have considered all relevant factors unless the record affirmatively shows the contrary.” (Ibid.) Here, there is nothing to indicate otherwise, particularly in light of the probation report addressing defendant’s addiction and prior efforts to provide him services.
The probation officer reported that, after entering his plea, defendant continued to deny having the methamphetamine lab (claiming what the officers found was leftover trash from someone else’s lab) and stated that he never had any problem with methamphetamine. The probation officer also chronicled defendant’s previous failure on a deferred entry of judgment, his subsequent referral to a substance abuse counseling program, and the requirement that he participate in substance abuse counseling while on his previous grant of parole.
We presume the trial court considered these facts. Factors addressed in the probation report and/or defense counsel’s statement to the court during the sentencing hearing are presumed considered by the trial court. (People v. Johnson (1988) 205 Cal.App.3d 755, 758.) The trial court is not required to accept defendant’s assessment of the quality of his mitigating factors. The evidence supports the trial court’s decision to impose the upper term.
DISPOSITION
The judgment is modified to reduce victim restitution to $1,758.08, reduce the drug laboratory fee to $50, and the related fines and assessments to $125, as set forth in part II of this opinion. The judgment is further modified to award defendant with 42 days of conduct credit, for a total of 85 days of custody credit. Defendant’s conviction and sentence of 19 years eight months are affirmed. The matter is remanded for the limited purpose of holding a hearing to redetermine the restitution fine in accordance with part III of this opinion.
Pursuant to this court’s Miscellaneous Order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. (Ct. App., Third App. Dist., Misc. Order No. 2010-002.) As expressed in the recent opinion in People v. Brown (Mar. 16, 2010, C056510) ___ Cal.App.4th ___ [2010 Cal.App. LEXIS 344], we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50.) Consequently, defendant having served 29 days of presentence custody, is entitled to 42 days of conduct credit.
We concur: SCOTLAND, P. J. SIMS, J.