Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC945402.
ELIA, J.
Appellant Francisco Valenzuela was convicted by plea of one misdemeanor count of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The court placed appellant on three years formal probation, awarded him 241 days of presentence custody credit consisting of 161 actual days and 80 days pursuant to Penal Code section 4019 (goodtime/worktime), and ordered various fines and fees. Appellant's change of plea/sentencing hearing took place on November 9, 2009.
The court ordered that appellant serve 241 days in jail, but deemed the sentence served.
On appeal, appellant challenges the custody credit award and two fees that were imposed. Specifically, appellant argues that we must strike a probation supervision fee and a booking fee because there is no evidence that he has the ability to pay either of these fees. We find merit in appellant's contention that there was insufficient evidence that he had the ability to pay the fees; but find that he is not entitled to have his Penal Code section 4019 credits recalculated. However, we remand the case to the trial court for further proceedings.
Facts and Proceedings Below
The facts related to appellant's conviction are not relevant to this appeal other than to note that he and his girlfriend Diana Martinez had an argument and appellant hit Martinez multiple times in the face and head with his fists. The blows caused cuts on Martinez's face and loosened some of her teeth.
In placing appellant on probation, the court told appellant "I don't know what else is out there for you. You will be released on this case. You are ordered to seek and maintain gainful employment...." Thereafter, the court ordered that appellant serve 20 hours of uncompensated community service and enroll in and complete a 52-week domestic violence batterers intervention class. The court told appellant that there were fines and fees associated with his offense and imposed various fines and fees including "[b]ooking cost of $129.75." The court told appellant that because the fines and fees amounted to $1000, the court would stay imposition for one year to November 9, 2010. Thereafter appellant was to begin paying at a rate of $100 per month. The court explained that the reason for staying the fines and fees was "to make sure that whatever money [appellant had] goes to pay for [the domestic violence batterers] class. The class is the most important thing in life." Subsequently, the court ordered that appellant pay a $10 per month probation supervision fee.
Discussion
4019 Credits
As noted, the court awarded appellant 241 days of custody credit consisting of 161 actual days and 80 goodtime/worktime credit.
Appellant contends that because the Legislature amended Penal Code section 4019 effective January 25, 2010 and since his case was pending on appeal and therefore not final, he is entitled to receive the benefit of that revision.
Prior to sentencing, a criminal defendant may earn credits while in custody to be applied to his or her sentence by performing assigned labor or for good behavior. Such credits are collectively referred to as "conduct credit." (People v. Dieck (2009) 46 Cal.4th 934, 939 & fn. 3.) Under the law in effect when appellant was sentenced, he was entitled to two days of conduct credit for every four days of actual custody. (Pen. Code, § 4019, § 4019 Stats. 1982, ch. 1234, § 7, p. 4553.) As noted, at sentencing on November 9, 2009, appellant was awarded 81 days of conduct credit pursuant to that formula.
Effective January 25, 2010, the Legislature amended Penal Code section 4019 to provide that criminal defendants may receive one day of conduct credit for every day of actual custody. (Pen. Code, § 4019, subd. (f); see Stats.2009-2010, 3d Ex.Sess., ch. 28, § 50, pp. 4427-4428.) Appellant argues that the version of Penal Code section 4019 that became effective on January 25, 2010 (hereafter January 2010 amendment) applies to him and that he is, therefore, entitled to 160 days of conduct credit rather than the 81 days that the court awarded. In order to conclude that appellant is entitled to additional days of credit, this court would have to accept the argument that the January 2010 amendment to Penal Code section 4091 applies retroactively. We note, however, that legislative provisions are presumed to operate prospectively and "should be so interpreted 'unless express language or clear and unavoidable implication negatives the presumption.' " (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.)
We note that Penal Code Section 4019 was amended again, effective September 28, 2010. (Stats. 2010, ch. 426, § 2.) These newest changes "apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date" of this enactment. (Pen. Code, § 4019, subd. (g).) Under this latest version, a term of six days will again "be deemed to have been served for every four days spent in actual custody" if all days are earned under section 4019. (§ 4019, subd. (f).)
Given the absence of a presentence probation report, appellant submits that it is impossible for this court to determine from the record whether he meets the criteria for a more liberal award of conduct credits. Accordingly, he asserts that the appropriate remedy is to remand the matter back to the trial court with an order that if appellant meets the eligibility requirements of the January 2010 version of Penal Code section 4019 his conduct credits should be recalculated.
We note that a split has arisen in the appellate courts regarding whether the January 2010 amendments to Penal Code section 4019 are available to inmates who had already been sentenced at the time the amendments went into effect but whose convictions were not yet final. Our Supreme Court has granted review in several cases raising this issue, including People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, review granted June 9, 2010, S181963, in which the Third Appellate District held the amendments are retroactive and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13-14, review granted June 9, 2010, S181808, in which the Fifth Appellate District reached the opposite result. The Supreme Court has also granted review in People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724, in which this court held that the January 2010 amendments are not retroactive.
Until we receive guidance from the Supreme Court, we adhere to our view that the Legislature did not intend the January 2010 amendments to apply retroactively. In re Estrada (1965) 63 Cal.2d 740, 745 held that an amendatory statute lessening punishment " 'represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law, ' " and that, in such cases, the section 3 presumption of prospective application is rebutted. However, Senate Bill No. 18, the legislation that amended Penal Code section 4019 effective January 25, 2010, was enacted in order to address the state's fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats.2009, 3d Ex.Sess., ch. 28, § 62.) Increasing the amount of credits available to certain inmates will reduce the prison population resulting in reduced costs to the state. This goal does not reflect a legislative determination that the original punishment for any particular crime was too severe. Thus, Penal Code section 4019 does not provide the necessary " 'clear and unavoidable implication negat[ing] the presumption [of prospective operation], ' " set forth in section 3. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1208.)
Relying on People v. Sage (1980) 26 Cal.3d 498, appellant raises an equal protection argument. Appellant asserts that if the credits provided by the January 2010 amendment to Penal Code section 4019 are not applied retroactively, the effect will be to create two classes of state prisoners: those who get the extra credits after January 24, 2010 and those that do not.
Sage is inapplicable here because it involved a prior version of Penal Code section 4019, which allowed presentence conduct credits to misdemeanants, but not felons. (Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither "a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid.)
The purported equal protection violation at issue here is temporal, rather than based on the defendant's status as a misdemeanant or felon. One of Penal Code section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct. Appellant and those similarly situated to him whose sentencing occurred prior to the effective date of the January 2010 amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively.
Simply put, the principal purpose of Penal Code section 4019 is to motivate good conduct. A defendant's past conduct cannot be motivated retroactively. This is a rational basis for applying the amendments prospectively only. Thus, appellant is not entitled to additional conduct credits.
Fees
Appellant claims that the court erroneously imposed a booking fee, and a probation supervision fee without determining his ability to pay these fees and that there is insufficient evidence to support any such determination.
In imposing the "booking cost" the court did not state the statutory basis for the fee on the record, but the court's minutes indicate that the fee of $129.75 was what is known as a criminal justice administration fee, which can be imposed under either Government Code section 29550, subdivision (c), Government Code section 29550.1 or Government Code section 29550.2. Again with the probation supervision fee the court did not state the statutory basis, but probation supervision fees are authorized by Penal Code section 1203.1b, subdivision (a). Two of the three Government Code statutes authorize the fees, but make them subject to a defendant's ability to pay them as does Penal Code section 1203.1b. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1402.) However, nothing in Government Code section 29550.1 makes payment dependent on the defendant's ability to pay.
"Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise processing arrested persons into a county jail. To some degree, they vary based on the identity of the arresting agency. Arrests made by a 'city, special district, school district, community college district, college, university or other local arresting agency' are governed by Government Code sections 29550, subdivision (a)(1) and 29550.1. Arrests made by a county are governed by Government Code section 29550, subdivision (c) and those made by 'any governmental entity not specified in Section 29550 or 29550.1' are governed by Government Code section 29550.2, subdivision (a)." (People v. Pacheco, supra, 187 Cal.App.4th 1392, 1399 fn. 6.) The record does not reveal which agency arrested appellant.
Specifically, Government Code section 29550.1 states, "Any city, special district, school district, community college district, college, university, or other local arresting agency whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee." As can be seen, nothing in the statute requires a determination of the defendant's ability to pay.
Given that the trial court's intent in imposing the booking fee is, at best, unclear -- and given that the statutory authority for that fee is nowhere manifested in the record -- we believe the most prudent course in this circumstance is to remand the case to the trial court for resentencing on the grant of probation. At that time, the court should state in writing, in an oral pronouncement, or, even better, by both methods, exactly which fees it is imposing on defendant, the statutory authority for those fees and if necessary determine whether appellant has the ability to pay the fee.
As to appellant's challenge to the probation supervision fee, respondent asserts that because appellant waived referral to the probation department for preparation of a probation report, failed to appear before the Department of Revenue or appear for his first appointment with his probation officer, appellant is estopped from contesting the proof regarding his ability to pay the fees.
We point out that although the court's minutes indicate that appellant was referred to the Department of Revenue for a determination of his ability to pay, the court did not so order orally. The general rule is that the oral pronouncements of the court control. (People v. Mesa (1975) 14 Cal.3d 466, 471.) We do not find anything in the record to indicate that appellant waived referral to the probation department. Nor does the appellate record support the assertion that appellant failed to meet with his probation officer. However, certainly, there is no evidence in the record that anyone, whether the probation officer or the court, made a determination of appellant's ability to pay the $10 per month probation supervision fee. Nor is there any evidence that probation advised him of his right to have the court make this determination or that he waived this right.
Immediately after appellant entered his no contest plea, the court proceeded to sentence him pursuant to a negotiated disposition, which was a grant of probation.
We point out that imposition of the fines and fees that the court ordered was suspended until November 9, 2010. We are assuming for the sake of argument that those fines and fees have automatically gone into effect.
Although a finding of ability to pay may be implied from the circumstances of the hearing (People v. Phillips (1994) 25 Cal.App.4th 62, 71), nothing in this case - the preliminary hearing record or the record of the change of plea/sentencing hearing-indicates that appellant had any work history, earning potential or what his financial obligations were, which all bear on appellant's ability to pay. We reject respondent's assertion that because the record of the preliminary hearing shows that appellant had his own house and a bicycle and wore two large rings this is evidence that appellant had the means to pay. Nothing in the preliminary hearing transcript indicates that appellant owned his own home or how valuable the bicycle and rings were such that we could infer that appellant was a "man of means."
Penal Code section 1203.1b provides in part "... in any case in which a defendant is granted probation or given a conditional sentence, 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 or a conditional sentence.... The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver. [¶] (b) When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The 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." It does not appear that this procedure was followed.
Given that there is no evidence that appellant had the ability to pay the probation supervision fee and because it is a de minimis amount, generally we would order the striking of the fee. However, since we have determined that this case must be remanded to the trial court to clarify the imposition of the criminal justice administration fee, out of considerations of judicial economy, we will instead reverse the judgment and remand with directions for the superior court to follow the applicable statutes and impose these fees, consistent with the applicable statutes, only on the required determination of appellant's ability to pay them if the applicable statute so requires.
Disposition
The judgment is reversed. The case is remanded to the trial court. The trial court is directed to vacate its orders concerning the criminal justice administration fee and the probation supervision fee and resentence appellant on his grant of probation.
WE CONCUR: RUSHING, P. J., PREMO, J.