Opinion
F061392 Super. Ct. No. VCF221607A
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. IVAN NUNEZ ZUNIGA, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE COURT
Before Kane, Acting P.J., Detjen, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, appellant Ivan Nunez Zuniga pled no contest to second degree robbery (Pen. Code, § 211), grand theft (§ 487, subd. (c)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), solicitation of murder (§ 653f, subd. (b)), solicitation of perjury (§ 653f, subd. (a)), and possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)) and admitted allegations that he had two prior strike convictions (§ 1170.12, subds. (a) - (i)), two prior serious felony convictions (§ 667, subd. (a)(1)) and had served three prior prison terms (§ 667.5, subd. (b)). The court imposed the indicated sentence of 29 years 8 months and various fines and fees. On appeal, Zuniga challenges four of the fines and fees imposed. We find merit to three of the challenges and will modify the judgment to correct those errors. We will also order correction of clerical errors in the abstract of judgment. In all other respects, we affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
FACTS
According to the facts set forth in the report of the probation officer and elicited at the preliminary hearing, Zuniga snatched his victim's purse as she was putting her child into the car after leaving the post office on May 12, 2009. She reported a loss of about $1800. A short time later, a witness saw Zuniga running and advised deputies he had run toward nearby apartments. When Zuniga was arrested at his apartment, police officers found methamphetamine and a glass smoking pipe, which Zuniga admitted were his. While in jail, Zuniga solicited another inmate to kill the witness to the purse robbery and to arrange false testimony.
The probation report indicated that Zuniga was 35 years old, unmarried, used methamphetamine daily, had never been employed, and had a ruptured disc but no physical disability or mental health issues.
In sentencing Zuniga, the court imposed the indicated term of 29 years 8 months, as well as 31 fees, fines, penalty assessments and surcharges. Those orders included a $5000 restitution fine (§ 1202.4), and $1800 in restitution to the victim of the purse snatching. The court ordered Zuniga to pay two $50 criminal lab fees (Health & Saf. Code, §11372.5) with penalty assessments and two $100 drug program fees (Health & Saf. Code, §11372.7), with penalty assessments for a total of $1,140. The court also ordered Zuniga to pay a $20 crime prevention fine (§ 1202.5) with penalty assessments, plus two $35 accounts receivable fees (§ 1202.5, subd. (d)) for a total of $146.
DISCUSSION
A. Drug Program Fees
Zuniga was convicted of two drug offenses: possession of methamphetamine (count 3) and possession of drug paraphernalia (count 6). The court ordered that he pay a $100 drug program fee pursuant to Health and Safety Code section 11372.7, subdivision (a), and $150 in penalty assessments for each offense. Zuniga contends the drug program fees and penalty assessments must be stricken because there is insufficient evidence to support the trial court's implied finding that he had the ability to pay these amounts. The People respond that this claim was forfeited because Zuniga did not object on these grounds in the trial court. Alternatively, they submit that Zuniga will be able to pay the amounts from his prison wages. Zuniga replies that trial counsel's failure to raise this issue constituted ineffective assistance. We conclude that Zuniga's failure to object to the implied ability to pay finding, forfeited any claim of error. (People v. Scott (1994) 9 Cal.4th 331, 352-356.) However, counsel's failure to challenge the implicit ability to pay determination did not constitute ineffective assistance.
Under issue 2, we conclude the drug program fee and penalty assessments attached to count 6 must be stayed under section 654. We consider this issue in that light.
Health and Safety Code section 11372.7, subdivisions (a) and (b) require the court to impose a drug program fee up to $150 for each offense, if it determined the defendant had the ability to pay. The statute does not require an express finding of ability to pay. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1516.) In the absence of evidence to the contrary, the reviewing court must assume the trial court followed the law in performing its duty. (Evid. Code, § 664). Under this assumption, the requisite determination of ability to pay is implicit in the order to pay the drug program fee. (People v. Martinez, supra, 65 Cal.App.4th at p. 1517.) The ability to pay determination does not require that the defendant have existing employment or cash on hand, but may be based on his ability to earn where he has no physical or mental impediments that preclude him from working once his sentence is completed. (People v. Staley (1992) 10 Cal.App.4th 782, 786.)
Zuniga submits there is no substantial evidence to support the implicit finding of ability to pay in his case given the other fines and fees imposed, especially the $5000 restitution fine and $1800 victim restitution. The People submit that the court clearly considered ability to pay issues, finding Zuniga able to pay some fines and fees but not all. In imposing the $5000 restitution fine, the court noted Zuniga's present and future ability to pay. In contrast, the court found no ability to pay attorneys fees, based on the length of incarceration.
Given Zuniga's current age and lengthy prison term, it is unlikely that the court based the ability to earn determination on the possibility of his working after his sentence is completed. However, able bodied prisoners are required to work (§ 2700) and Zuniga denied having any physical disability that precluded him from working in prison-although he stated he has a ruptured disc. The court could reasonably conclude that Zuniga will be able to work while in prison and thereby had the ability to pay the $100 drug program fee.
Appellate counsel's assertion that Zuniga's "painful ruptured spinal disc" rendered him outside the category of "able bodied" for presuming he could work in prison is not supported by the record.
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B. Criminal Lab Fee and Drug Program Fee imposed on Count 6
Zuniga next contends the court erred in imposing a criminal lab fee and a drug program fee on his conviction for misdemeanor possession of drug paraphernalia (count 6) because the court imposed no jail or prison time on that count. The parties agree that it appears the court stayed the sentence on count 6 under section 654.
Section 654 bars the imposition of the fees and penalty assessments attached to count 6 because sentence on that count was stayed. (People v. Sharret (2011) 191 Cal.App.4th 859, 870.) The People concede and we agree that the criminal laboratory fee, drug program fee and penalty assessments attached to count 6 must be stayed.
C. Crime Prevention Fine, Corresponding Penalty Assessments
Zuniga was ordered to pay $146, which was broken down into 14 different fines, penalty assessments, surcharges and fees, including two $10 crime prevention fines and corresponding penalty assessments that total $56. Zuniga contends only one $10 crime prevention fine and corresponding penalty assessments totaling $28 were authorized. The People concede the error (§ 1202.5, subd. (a); People v. Crittle (2007) 154 Cal.App.4th 368, 371 [a crime prevention fine can be imposed only once in a case]) and agree that one of the crime prevention fines and one-half of the corresponding penalty assessments ($28) must be stricken. We agree and will reduce the $146 order to $108 to correct this error.
D. Accounts Receivable Fees
The $146 order also included $70.00 "to be considered an Accounts Receivable Fee pursuant to Section 1205(d)...." Zuniga assumes this amount encompassed two $35 accounts receivable fees and argues both were unauthorized because no installment plan was established and there was no evidence Zuniga defaulted on payment. The People respond that the fee should be reduced to $35. They reason that one accounts receivable fee was proper under the 2009 version of section 1205 because the probation officer recommended an installment plan for the payment of the $146, which required Zuniga to begin payments after he was released from custody.
The 2009 version of section 1205 provided:
"(a) A judgment that the defendant pay a fine, with or without other punishment, may also direct that he or she be imprisoned until the fine is satisfied and may further direct that the imprisonment begin at and continue after the expiration of any imprisonment imposed as a part of the
punishment or of any other imprisonment to which he or she may theretofore have been sentenced.... Each of these judgments shall specify the extent of the imprisonment for nonpayment of the fine, which shall not be more than one day for each thirty dollars ($30) of the fine, nor exceed in any case the term for which the defendant might be sentenced to imprisonment for the offense of which he or she has been convicted. A defendant held in custody for nonpayment of a fine shall be entitled to credit on the fine for each day he or she is so held in custody, at the rate specified in the judgment....
"(b) [Fines imposed as conditions of probation.]
"(c) This section applies to any violation of any of the codes or statutes of this state punishable by a fine or by a fine and imprisonment. [¶]...[¶]
"(d) The defendant shall pay to the clerk of the court or the collecting agency a fee for the processing of installment accounts. This fee shall equal the administrative and clerical costs, as determined by the board of supervisors, ... except that the fee shall not exceed thirty-five dollars ($35)....
"(e) This section shall only apply to restitution fines and restitution orders if the defendant has defaulted on the payment of other fines."
Section 1205, subdivision (d) authorizes the imposition of a fee for the processing of installment accounts. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1693, fn.2.) Zuniga contends that when subdivisions (d) and (e) are read together, subdivision (d) applies only if the defendant has defaulted on the payment of other fines. We disagree. Read in context, subdivision (e) provides that all of section 1205's provisions apply to restitution fines and orders, only if the defendant has defaulted on the payment of other fines. The court did not impose the accounts receivable fee on Zuniga's orders to pay restitution fines and victim restitution. Rather, it imposed it on the order to pay $146 in other fines and penalty assessments, now reduced to $108.
In his reply brief, Zuniga asserts there is "virtually no financial benefit" to pay $35 for an installment account allowing deferred payment of such a small amount. Further, if there is an installment account created by imposition of the accounts receivable fee, all fees and fines other than restitution fines and orders Zuniga owes should be collectable only in installments after he is released from custody. Zuniga cites no authority for his assertions and we have found none. Accordingly, we will reduce the $70 accounts receivable fee to $35, thereby reducing the $108 amount to $73.
E. Correction of Abstract of Judgment
The parties agree the abstract of judgment contains several clerical errors and requires amendment so that it accurately reflects the court's oral pronouncements. The specified errors and amendments with which we agree are:
1. In section 1, on the grand theft count, the abstract of judgment states that the middle term was imposed and stayed pursuant to section 654 but does not reflect the number of years imposed. The abstract of judgment must be amended to reflect that the middle term of 4 years was imposed and stayed.
2. In section 2, the section 667, subdivision (a)(1) and section 667.5, subdivision (b) enhancements are listed. These enhancements are properly listed in section 3.
3. Also regarding those enhancements, the abstract erroneously reflects the court imposed one ten-year enhancement pursuant to section 667, subdivision (a)(1) and one section 667.5, subdivision (b) one-year enhancement. The record shows the court properly imposed two five year enhancements under section 667, subdivision (a)(1) and three section 667.5, subdivision (b) one-year enhancements. Section 3 must be amended accordingly.
4. Regarding the fines and fees, section 11 of the abstract states, "Defendant ordered to pay the amount of $146 pursuant PC 1202.5 as order [sic] in the Probation Report." As set forth above (issues 3 and 4), the $146 amount must be reduced to $73. Of this amount, the $10 crime prevention fee must be reported in section 9c and the remaining amount ($63) reflected in section 11 of the abstract.
5. Section 9c reflects a "$1,140 Drug Program Fee per HS 11372.7(a) for each qualifying offense" and section 11 states, "Defendant ordered to pay the amount of $1,140 as order [sic] in the Probation Report."
There are two errors here. First, the court ordered that Zuniga pay a total of $1,140; the abstract erroneously implies he must pay that amount twice.
Second, half of that amount, imposed on count 6, must be stayed under section 654, thereby reducing the total amount imposed to $570. Of this $570, $150 must be listed in section 9c of the abstract (the $50 lab fee and $100 drug program fee). The remaining $420 must be listed under section 11 of the abstract.
6. Finally, although the parties waived the court's obligation to individually specify each corresponding penalty assessment imposed, all fines and fees must be set forth in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) When the court orally imposes the penalties and surcharges by a shorthand reference to penalty assessments, the trial court clerk must specify the penalties and surcharge in appropriate amounts in the minutes and the abstract of judgment. (People v. Sharret, supra, 191 Cal.App.4th at pp. 864-865.) Accordingly, the abstract of judgment must be amended to set forth with specificity the penalty assessments imposed in section 11.
DISPOSITION
The judgment is modified (1) to stay the $50 criminal laboratory fee and $100 drug program fee and penalty assessments attached to count 6, (2) to reduce the order to pay $146 in fines and fees to $73 and (3) to reduce the order to pay $1,140 in fees and assessments to $570. The case is remanded to the trial court to correct the six errors in the abstract of judgment set forth above. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract reflecting the modifications and corrections ordered by this court and to forward a certified copy of the abstract to the Department of Corrections.