Opinion
E049613, E049614 No. RIF146430 RIF148901
11-17-2010
THE PEOPLE, Plaintiff and Respondent, v. LUIS FLORES, JR., Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
OPINION
APPEAL from the Superior Court of Riverside County. Gordon R. Burkhart, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
Defendant and appellant Luis Flores, Jr., moved the trial court to modify the terms of his probation in case Nos. RIF146430 and RIF148901 to reduce or vacate fees, costs, and fines. Defendant appeals from the orders continuing his probation on the same terms with the exception of suspending the administrative fine in each of his two cases. We affirm with directions to impose omitted fees and assessments.
I. BACKGROUND
Defendant was charged in case No. RIF146430 with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1) and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 2) on or about October 15, 2008. Defendant pled guilty to both counts on October 17, 2008, and was ordered to enroll in a drug abuse diversion program. (Pen. Code, § 1000 et seq.)
At that time, defendant also pled guilty in a separate case, case No. RIM495535, to a charge of driving while his privilege was suspended (Veh. Code, § 14601) and was ordered to pay "the statutory fine of $1,099."
Case No. RIM495535 is unrelated to the instant appeal.
On March 5, 2009, defendant pled guilty in case No. RIF148901 to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1) and misdemeanor burglary (Pen. Code, § 459, count 2). Defendants diversion in case No. RIF146430 was terminated and defendant was placed on probation in both cases. The terms of probation included one year in county jail, as well as several fees, fines, and other financial obligations. Among those being challenged in this appeal are: costs of probation supervision up to $252 or $1,908 if the level of supervision increased (Pen. Code, § 1203.1b); appointed counsel fees of $96 (Pen. Code, § 987.8); booking fees of $110 (Gov. Code, § 29550); $299 for drug lab fees (Health & Saf. Code, § 11372.7); and assessments on the drug lab fee. Defendant was also ordered to pay only one $20 court security fee in each case.
On September 28, 2009, defendant moved to modify his probation terms on both cases to "vacate the imposition of probation reimbursement costs, attorney fees, booking fees, and the drug fine distribution." Defendants moving papers asserted a change in circumstances because defendants "mother has taken ill and cannot support the family or adequately care for the household," and defendant "has been unemployed since October 2008 and has not collected any type of state assistance."
On October 13, 2009, the trial court set a new hearing date on the "modification on the amounts of money thats owed" so it could determine whether any amounts were in excess of the courts jurisdiction, and because the trial court thought "that there should have been some hearing on to decide whether or not you could, in fact, make those payments." The trial court also stated, "I know [defendants] mother is here as well. What I would also be willing to do is also send it to the O.R. release clerk to at least get some information as to what the information is about employment, et cetera, and connections to the community. [¶] One of the bases that youre asking for this to be modified is to assist in terms of the bills at home because mother is ill and unable to provide for those bills that are currently outstanding, so I do want to at least get some information for either this Court or the next bench officer as to whether or not hes going to be able to assist in the manner in which he hopes to be able to, and what the information is, and that can be given to the Court by way of that—a detention report. They can get that information. That will provide an additional basis as well." The same day, the trial court modified defendants probation to permit him to complete the balance of his jail term on weekends. Defendants trial counsel said that defendants mother would pay the $90 administrative fee to convert his jail term to weekends.
On November 6, 2009, the continued hearing was heard by the same judge that had imposed defendants probation terms. Defendants trial counsel reported that defendant was unemployed and "helping his mother, who is currently ill and is not in the position to pay for his fees and fines." Defendants trial counsel also stated that the trial court was welcome "to inquire with respect to [defendants] ability to pay." The trial court stated it was "not inclined to strike the fines," but would be willing to work on a payment schedule. It then struck a $35 administrative fee in each case, ordered no payments due until March 1, 2010, and denied the motions.
II. DISCUSSION
Defendant contends the trial court abused its discretion by denying the requests because "it is evident that [defendant] has no ability to pay any of the amounts assessed." The People contend the delay in payments was an appropriate exercise of the trial courts discretion as to defendants ability to pay, and assert that defendant may again apply for modification. Defendant responds that his situation remains the same and that "in light of current economic conditions," "no ability to pay is going to materialize." Because there is no evidence of defendants financial status or earning potential, we affirm.
"On appeal, we presume that a judgment or order of the trial court is correct, „ "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 666.) "It is axiomatic that statements by counsel are not evidence." (People v. Richardson (2008) 43 Cal.4th 959, 1004 [referring to statements during trial].)
Defendants September 28, 2009 moving papers asserted that defendants mother was ill and defendant had been unemployed since his arrest in October of 2008. The motion did not include affidavits from defendant or his mother in support of these assertions.
At the October 13, 2009, hearing the trial court offered to send the matter out for preparation of a detention report so it could "at least get some information" as to defendants financial status and ability to assist his mother. At that time, the only information was the representations of counsel from the moving papers. The trial court also modified defendants probation so that the balance of his jail term could be served on weekends, and continued the hearing.
The record does not include a detention report or other evaluation of defendants situation. At the continued hearing on November 6, 2009, defendants trial counsel offered to let the trial court question defendant, but did not introduce any evidence as to defendants financial status or the financial assistance needed by his family. Instead, defendants trial counsel merely repeated the representations in the moving papers.
Accordingly, the record is silent as to defendants financial status, and we must presume the trial courts order is correct. Thus, we find no abuse of discretion in the trial courts decision to delay payments, state its willingness to be flexible on a payment plan, and then deny defendants motions.
III. OMITTED MANDATORY FEES AND ASSESSMENTS
Although not raised by the parties, we note that only one court security fee was imposed in each case, and that in neither case were facilities assessments imposed. Pursuant to Government Code section 68081, we offered the parties the opportunity to submit supplemental briefs as to whether the trial court erred by failing to impose a $20 court security fee for each conviction, and whether the trial court erred by failing to impose facilities assessments in case No. RIF148901. Defendant did not respond, and the People contended that the trial court erred. The People are correct.
Penal Code section 1465.8, subdivision (a)(1), provides that, "a fee... shall be imposed on every conviction for a criminal offense...." (Italics added.) Government Code section 70373, subdivision (a)(1), provides that, "an assessment shall be imposed on every conviction for a criminal offense...." (Italics added.)
This language is mandatory. Thus, both need to be imposed. If they are not imposed, they may be ordered imposed on appeal. (People v. Crabtree (2009) 169
Cal.App.4th 1293, 1328 [discussing Pen. Code, § 1465.8]; see also People v. Davis (2010) 185 Cal.App.4th 998, 1000 [noting similarity of Gov. Code, § 70373 to Pen. Code, § 1465.8].) This is because when a trial court fails to impose a statutorily mandated fee, fine, or assessment, an unauthorized sentence results and this court is empowered to correct it. (See People v. Smith (2001) 24 Cal.4th 849, 853 [parole revocation fine]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413 [criminal laboratory analysis fee]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255 [parole revocation fine].) Government Code section 70373 is not applicable to convictions that occurred prior to its effective date of January 1, 2009; thus, it does not apply to defendants convictions in case No. RIF146430. (People v. Davis, supra, 185 Cal.App.4th at p. 1000 [conviction in Gov. Code, § 70373 context is date of plea or verdict].)
Defendant was ordered to pay one $20 court security fee in each case. Accordingly, defendant should have been ordered to pay a total of four $20 court security fees, one for each conviction in both case Nos. RIF146430 and RIF148901 (Pen. Code, § 1465.8), and should have been ordered to pay two $30 facilities assessments in case No. RIF148901 (Gov. Code, § 70373).
IV. DISPOSITION
The trial court is directed to impose a second $20 court security fee (Pen. Code, § 1465.8) in both case No. RIF146430 and case No. RIF148901, and to impose two $30 facilities assessments (Gov. Code, § 70373) in case No. RIF148901. In all other respects, the orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ, P. J.
We concur:
KING, J.
MILLER, J.