P. v. Banales
Filed 4/19/13 P. v. Banales CA4/2
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO GERMAN BANALES,
Defendant and Appellant.
D061472
(Super. Ct.
No. JCF27831)
APPEAL from a judgment of the Superior
Court of
County, Poli Flores, Jr., Judge. Affirmed as modified.
A jury convicted defendant Mario
German Banales of unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1) and of
receiving a stolen motor vehicle (Pen.
Code, § 496d, subd. (a); count 2).
In a bifurcated proceeding,
the trial court found Banales had two prison priors within the meaning of
section 667.5, subdivision (b), struck one of those priors and sentenced
Banales to state prison for four years.
Banales raises three issues in this proceeding. First, he contends the sentencing court's
order requiring him to pay $240 in restitution pursuant to section 1202.4,
subdivision (b)(1) violated the constitutional prohibition against the ex post
facto application of a law because the statutory minimum at the time he
committed the instant offenses was $200 and because the court allegedly
intended to impose the statutory minimum.
Second, he contends the court erred in imposing an order preventing him
from entering the premises of the Brawley
Elementary School District
(district) because he was denied probation.
Finally, he contends the court erred in ordering him to pay $100 in
court-appointed attorney fees pursuant to section 987.8.
As we explain, we agree with Banales's contention that the order to
stay away from the premises of the district be stricken, inasmuch as Banales
was denied probation. In all other
respects, we affirm Banales's judgment of conviction.
BRIEF BACKGROUND
The relevant facts are not in
dispute. A pickup truck belonging to the
district was reported missing in late September 2011. A few days later, a district employee
recognized the truck parked near a school.
The district's dispatcher notified district director of maintenance
Marcelino Felician about the location of the stolen truck. Felician found the truck and called
police. As Felician waited for police to
arrive, Felician saw a male later identified as Banales get into the driver's
side of the truck and drive away with a male passenger. Before driving away, Felician saw the male
driver put a backpack in the bed of the truck.
Felician followed behind the truck until it stopped and saw both males
exit the truck.
When police contacted Banales, he had the backpack strapped to his
back. Banales told police the backpack
belonged to him and admitted he was on parole.
In a subsequent search of the backpack, police found inside an insurance
card that matched the make, model and VIN number of the truck and some latex
gloves. Police observed that the driver
side window of the truck was broken, and the truck's ignition was modified to
fit a screwdriver. Police found a
flathead screwdriver on the passenger side floor of the truck.
DISCUSSION
A.
Restitution Fine
The record shows Banales committed
the instant offenses in September 2011.
At that time, section 1202.4, subdivision (b)(1) provided, "[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)." (Stats. 2005,
ch. 240, § 10, italics added.) Section
1202.4, subdivision (b), as amended in 2011 and effective January 1, 2012, provides for a minimum $240
fine. (See Stats. 2011, ch. 358.) The statutory maximum did not change,
however. (See § 1202.4, subd. (b)(1).)
Banales contends the imposition of
the $240 fine violated the constitutional prohibition against the ex post facto
application of a law because the court intended to impose the statutory minimum
and therefore erroneously imposed the minimum applicable in 2012 (i.e., $240),
rather than the minimum that governed crimes committed before then (i.e.,
$200). We are not persuaded.
For one thing, there is no ex post facto application of section
1202.4, subdivision (b)(1) because the court had discretion to impose a
restitution fine up to $10,000 and thus Banales was not subject to increased
punishment when the sentencing court ordered him to pay $240. For another thing, the court is presumed to
have followed the correct law, even if it did not explicitly state the law it
was applying. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554,
562.) An appellant has the burden of
affirmatively showing error, and we cannot find such error on the basis of mere
speculation.
Indeed, the sentencing court here made no reference to applying the
statutory minimum for the restitution fine, and there is nothing in the record
to support such a finding. The
sentencing court clearly was within its discretion when it ordered Banales to
pay $40 more than the statutory minimum applicable at the time Banales committed
the offenses. As such, we conclude the
court did not abuse its discretion in ordering Banales to pay restitution of
$240.
B.
Banales next contends the court erred when it imposed the order to
stay away from the district because Banales was denied probation. The People concede this issue and thus we
will order this condition stricken.
C. Payment of Fees for Court-Appointed Attorney
Finally, Banales contends he was denied due process of law based on
the failure of the sentencing court to inform him of his statutory right to a
hearing pursuant to section 987.8, subdivision (b)
the issue whether he had the ability to pay all or a part of the costs for
court-appointed counsel.
In a case similar to ours, the defendant in People v. Phillips (1994) 25 Cal.App.4th 62 (Phillips) challenged the order requiring him to pay $150 toward the
costs of his court-appointed counsel because, among other things, the court had
failed to give him notice of his right to a section 987.8 hearing, and the
defendant had not expected "the court to take up the matter of legal fees
during the sentencing hearing." (
In rejecting this argument, the court in Phillips held that the probation report's reference and
recommendation regarding payment of attorney fees for court-appointed counsel
"constituted notice reasonably
calculated, under all of the circumstances, to apprise defendant that the
matter would be taken up in the context of the sentencing hearing." (Phillips,
supra, 25 Cal.App.4th at p. 74.) The court in Phillips saw "no reason why such a recommendation should not
be viewed as placing a defendant on notice that he or she should be prepared to
proceed with the ability-to-pay hearing at [the] time of sentencing." (Id. at
pp. 74-75.)
We find the reasoning of Phillips
persuasive. Like the defendant
there, in our case Banales's probation report (which is part of the record)
recommended that he pay $100 toward the services of his court-appointed
counsel. Although not the preferred
practice (see Phillips,
conclude the reference to attorney fees in the probation report provided
Banales sufficient notice that the issue of payment of attorney fees could come
up in the sentencing hearing and such notice satisfied due process.
Moreover, the court in Phillips noted
the conduct of defense counsel at the sentencing hearing supported its
conclusion that the defendant was afforded sufficient notice to be prepared for
a section 987.8 hearing: "Counsel
did not offer any objection to the court's order for reimbursement on grounds
of notice, lack of preparation, or lack of an opportunity to present
evidence. The absence of any such
objection indicates that defendant was not surprised by the court's consideration
of his financial status and the subsequent order for reimbursement. [Citation.]" (Phillips,
supra, 25 Cal.App.4th at p. 75.) Similarly, in the instant case the record
shows Banales's defense counsel neither objected to the decision of the court
to take up the attorney fees issue at sentencing nor to the $100 imposed by the
court for reimbursement of such fees.
The court in Phillips also
rejected the argument of the defendant that the section 987.8 hearing must be
separate: "[S]ection 987.8 does not
contain any language either mandating a separate hearing or prohibiting
consideration of reimbursement for legal costs as part of the sentencing
process. In addition, as with probation
costs, a construction of section 987.8 which permits the court to take up the
matter of legal costs at time of sentencing, is also consistent with the
general purpose of the statute at issue, i.e., to conserve the public
fisc. In sum, based on the language of
the statute and sound policy considerations, we can perceive no valid basis for
construing the statute as requiring the expenditure of additional public funds
by requiring all of the interested parties to reconvene before the court at a
later date. While this is clearly an
option under the statute, section 987.8 by no means compels such a procedure." (Phillips,
supra, 25 Cal.App.4th at p. 76.) Again, we find Phillips persuasive on this issue and conclude Banales was not
entitled to a separate section 987.8 hearing regarding payment of attorney
fees.
Finally, we separately reject Banales's contention he was denied due
process of law in connection with this issue because the record shows that
during the sentencing hearing he consented to pay $100 toward the costs of his
court-appointed counsel, as demonstrated by the following colloquy:
"[THE COURT:] Mr. Banales,
the Court had advised you at your arraignment that when your case was over, you
may be asked to reimburse the county for the costs of the Court appointed
counsel. The recommendation is $100 for
the cost of the Court appointed counsel. . . . There was quite a bit of time and preparation
for this case. That amount is a tiny
fraction of the amount of time that was spent.
You agree to pay that amount?
"Mr. Banales: Pay what?
"THE COURT: The amount for
attorney's fees, $100?
"Mr. Banales: All right.
"THE COURT: All
right. That will be the order."
We also conclude Banales's consent to pay $100 is sufficient evidence
to support the (implied) finding of the trial court that Banales had the
resources to pay a small portion of the costs of his court-appointed counsel.
DISPOSITION
The order of the court requiring Banales to
stay away from the district's premises is stricken. As modified, the judgment of conviction is
affirmed. The trial court is directed to
prepare an amended abstract of judgment reflecting the modified judgment and to
forward a certified copy thereof to the California
BENKE, Acting P. J.
WE CONCUR:
HALLER,
J.
AARON,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] In light of our decision on the merits, we deem it
unnecessary to decide whether Banales forfeited this claim by failing to raise
it below. In any event, we note the
issue of forfeiture in an analogous situation (i.e., involving a criminal
justice administrative fee) is currently pending before our Supreme Court. (See People
v. McCullough, review granted
June 29, 2011, S192513.)
