P. v. Finkenkeller
Filed 1/10/13 P.
v. Finkenkeller CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(Butte)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
JESSE
WADE FINKENKELLER,
Defendant and
Appellant.
C069893
(Super. Ct. No.
CM034937)
On
appeal, defendant contends that (1) the prospective application of the
conduct credit provisions of the Criminal Justice Realignment Act of 2011
(Realignment Act) (Stats. 2011, ch. 15, § 482) violates his right to equal
protection of the law and (2) the presentence investigation report fee
must be stricken because there was insufficient evidence of his ability to pay
the fee and the trial court applied the incorrect standard in making that
determination. We reject the first
contention based on the California Supreme Court’s decision in
896 (Lara). As to the second contention, we conclude the
trial court applied the incorrect standard and remand for a new hearing on the
fee using the correct standard. We
affirm the judgment as modified.
BACKGROUND
name="_ftnref1" title="">[1]
Defendant
Jesse Wade Finkenkeller committed his crimes in the instant case on June 18, 2011. Defendant pled guilty to
corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))
enhancement (§ 667.5, subd. (b)).
He was sentenced on November 8, 2011. The trial court sentenced defendant to five
years and eight months in state prison and awarded 133 days of presentence
credit (89 actual and 44 conduct).
Under
the law in effect at the time of sentencing, a defendant with a current or
prior serious or violent felony conviction was entitled to two days of conduct
credit for every four days of presentence custody. (Former § 4019.) Defendant’s conviction for
felony. (§ 1192.7,
subd. (c)(38).)
DISCUSSION
The
Realignment Act amended section 4019, entitling defendants to two days of
conduct credit for every two days of presentence custody. (§ 4019, subds. (b), (c), (f).) The award of credits is not reduced by a
defendant’s prior conviction for a serious or violent felony. This provision applies prospectively to
defendants serving presentence incarceration for crimes committed on or after October 1, 2011. (§ 4019,
subd. (h).)
Defendant
argues that the prospective application of section 4019 violates equal
protection principles. This argument was
rejected by the California Supreme Court in Lara. (Lara,
supra, 54 Cal.4th at p. 906, fn. 9.)
In
Lara, the Supreme Court explained its
rejection of defendant’s equal protection argument as follows: “As we there [People v. Brown (2012) 54 Cal.4th 314, 328-330] explained,
‘“[t]he obvious purposeâ€â€™ of a law increasing conduct credits ‘“is to affect
the behavior of inmates by providing them with incentives to engage in
productive work and maintain good conduct while they are in prison.†[Citation.]
“[T]his incentive purpose has no meaning if an inmate is unaware of
it. The very concept demands prospective
application.â€â€™ (Brown, at p. 329, quoting In
re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve
their detention thereafter, are not similarly situated with respect to the
law’s purpose. (Brown, at pp. 328-329.)â€
(Lara, supra, 54 Cal.4th
at pp. 900, 906, fn. 9.)
Accordingly,
defendant is not entitled to the additional accrual of conduct credits under
the October 1,
2011, amendment to section 4019.
Defendant
contends the $736 presentence investigation report fee (§ 1203.1b) must be
vacated because there is insufficient evidence of his ability to pay and the
trial court applied the incorrect standard.
As
stated in the probation report, defendant was 55 years old at the time of
sentencing. He had carpal tunnel
syndrome, neck problems, degenerative disks in his back, and had suffered three
heart attacks. He was taking several
drugs to treat his heart condition and an enlarged prostate.
Defendant
graduated from high school in the Youth Authority. The probation report listed his job skills as
“Maintenance, ‘jack of all trades.’â€
Defendant’s extensive criminal record included three infractions,
twenty-four misdemeanors, and nine felonies.
He was last employed in 1999 at the Butte County landfill, and his
longest term of employment was from 1978 to 1979 at USA Gas.
Defendant
admitted to daily use of methamphetamine, which he financed through drug
sales. He listed his income at $380 a
month with the same amount for monthly expenses. He had no assets.
The
probation report recommended a $2,000 restitution fine (§ 1202.4), a
suspended parole revocation fine (§ 1202.45) of the same amount, a $720
section 672 fine, an $80 court security fee (§ 1465.8), a $60 conviction
assessment fee (Gov. Code, § 70373), and a $736 presentence investigation
report fee. The report determined
“defendant is able-bodied with marketable job skills; therefore, he should be
capable of complying with the financial consequences of his conviction.â€
The
trial court struck the section 672 fine and imposed the other fines and fees
recommended in the probation report.
After defense counsel objected on the grounds that defendant’s age and
health made him unlikely to pay, the trial court reduced the restitution and
suspended parole revocation fines to $200 each.
Regarding the remaining fines and fees, the trial court said it was “not
finding that there’s the extraordinary circumstance that would allow the court
to stay those fines in light of the conduct that was described in the probation
report. Several instances there describe
conduct by [defendant] showing his physical ability to some degree that would
render him able to work to pay the remainder of the fines and fees.â€
We
review the trial court’s finding that defendant was able to pay the fee for
substantial evidence. (
199 Cal.App.3d 344, 347; People v.
Kozden (1974) 36 Cal.App.3d 918, 920.)
Section
1203.1b, subdivision (a), provides that in any case in which a defendant
has been convicted and a presentence investigation report is prepared, the
probation officer shall make a determination of defendant’s ability to pay all
or some of the reasonable costs of preparing that report. The statute requires the probation officer to
inform the defendant he or she has a right to have the court determine his or
her ability to pay and the payment amount.
The defendant may waive the right to such a determination only by a
knowing and intelligent waiver.
(§ 1203.1b, subd. (a).)
Absent such a waiver, the trial court must conduct an evidentiary hearing
to determine if the defendant has the ability to pay and the manner of any such
payments. (§ 1203.1b, subd. (b);
103 Cal.App.4th 889, 892-893.)
Subdivision
(e) of section 1203.1b sets forth the relevant criteria in determining a
defendant’s “ability to payâ€: the
defendant’s present financial position; his or her reasonably discernible
future financial position (limited to a one-year perspective); the likelihood
of the defendant’s obtaining employment within a year; and any other factors
that may bear on the defendant’s financial capability to reimburse the county
for costs.
We
conclude the trial court applied the incorrect standard in finding defendant
could pay the fee. Section 1203.1b
predicates the presentence investigation report fee on a finding by the trial
court “that the defendant has the ability to pay those costs.†(§ 1203.1b, subd. (b).) Here, the trial court found there were no
“extraordinary circumstances†that defendant could not pay the fee. This standard is not found in the
statute.
The
Attorney General argues the trial court applied the correct standard because
section 1203.1b is intended to apply a “liberal assessment†of a defendant’s
ability to pay. The argument is derived
from a comparison between section 1203.1b and the ability to pay provision
in section 987.8, the cost of counsel.
The Attorney General points out that section 987.8 contains a
presumption that a defendant sentenced to prison is not capable of paying the
fee (§ 987.8, subd. (g)(2)(B)), while section 1203.1b contains no
such presumption. Also, section 987.8
gives a six-month time frame to consider defendant’s future financial position
(§ 987, subd. (g)(2)(A)), as opposed to the one-year time frame in
section 1203.1b. (§ 1203.1b,
subd. (e)(2).) Based on these
differences, the Attorney General concludes the Legislature intends a more
liberal definition of ability to pay for section 1203.1b, which is
consistent with the trial court’s ruling.
The
Attorney General’s argument, while creative, is unpersuasive. Section 1203.1b does not contain language
limiting a finding that the defendant cannot pay the fee to exceptional
circumstances, and we are unwilling to read such language into the
statute. Section 1203.1b means what the
Legislature said -- a trial court does not presume the defendant can pay, but
instead determines his or her ability to pay under the criteria set forth in
the statute.
Since
the trial court applied an incorrect standard, we remand the case for the trial
court to apply the correct standard.
(See, e.g., People v. Knoller
(2007) 41 Cal.4th 139, 158 [remand for trial court’s reconsideration of
motion for new trial under correct standard].)
Based on our resolution of this issue, we decline to review the
sufficiency of the evidence challenge until the trial court has applied the
correct standard to determine defendant’s ability to pay.
DISPOSITION
The
presentence investigation report fee under Penal Code section 1203.1b is
vacated and the matter is remanded to the trial court for a new hearing on
defendant’s ability to pay the fee. As
modified, the judgment is affirmed.
HOCH , J.
We
concur:
HULL ,
Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Given the nature of the issues on appeal, only the facts and
procedural history relevant to our disposition are recounted.
name="_ftn2" title="">[2] Undesignated statutory references are to the Penal Code.
