P. v. Landa

















Filed 10/16/12 P. v. Landa CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. RAFAEL RUIZ LANDA, Defendant and Appellant.

E053154 (Super.Ct.No. FVA1001782) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Bernardino
County. Steven A.
Mapes, Judge. Affirmed with directions.

Gregory
S. Cilli, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and
Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant
Rafael Ruiz Landa appeals from his conviction of href="http://www.fearnotlaw.com/">possession of methamphetamine for sale
(Health & Saf. Code, § 11378) and transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)). He contends:
(1) the trial court erred by failing to instruct the jury sua
sponte about the defense of mistake of fact; (2) the case should be
remanded with directions to the trial court to specify the number of days of
conduct credit awarded; (3) the processing fee under Penal Code section
1205, subdivision (d) should be stricken; (4) the trial court erred in failing
to provide him a hearing under Penal Code section 1203.1b to determine his
ability to pay a $505 fee for presentence investigation and probation report
preparation; and (5) the minutes of the href="http://www.mcmillanlaw.com/">sentencing hearing should be amended to
reflect that the trial court stayed the restitution fine under Penal Code
section 1202.4. The People agree that
remand is necessary for the trial court to determine defendant’s conduct
credits; the processing fee under Penal Code section 1205, subdivision (d) must
be stricken; and the minute order for
the sentencing hearing must be amended to reflect that the restitution fine was
stayed. On our own motion, we have
determined that the trial court erred in staying the facilities assessment fee
and court security fee for count 2. We
find no other prejudicial errors.

II. FACTS AND PROCEDURAL BACKGROUND

At
about 2:00 a.m. on November 15, 2010, Fontana Police
Officer Samuel Siggson noticed a car stopped in the middle of the street about
a car length back from the stop sign at an intersection. The car’s headlights were on, and the car had
no front license plate. Officer Siggson
drove toward the car, and it moved in reverse a few car lengths and parked in
front of a driveway. Defendant, the only
person in the car, got out and walked down the street.

Officer
Siggson drove up next to defendant, got out of his car, and asked defendant if
he lived nearby. Defendant said he did
not. He was fidgety, spoke rapidly, and
was sweating even though it was cold outside.
The officer asked defendant for his driver’s license, and defendant
instead produced a Mexican identification card.
Defendant said the car belonged to his wife. He denied the car contained any contraband,
and he consented to a search of the car.

During
the search, Officer Siggson found two plastic baggies inside an Ice Breakers
mint container on the front passenger seat.
One of the baggies was protruding from the container. One baggie contained 4.86 grams of
crystal-form methamphetamine; the other contained 0.77 grams of powder-form
methamphetamine. Officer Siggson
testified that a typical dose of methamphetamine would be from 0.1 to 0.2 grams. Defendant had $442 on his person, including
three $100 bills, five $20 bills, four $5 bills, and twenty-two $1 bills. The officer did not find any paraphernalia
for using methamphetamine.

Officer
Siggson believed defendant possessed the methamphetamine for sale, because
defendant did not explain why he was in the area at that time of night or why
he left the car when the officer approached.
In addition, defendant appeared nervous; users normally do not have the
amount of methamphetamine that defendant had, and defendant did not have any paraphernalia
for using the drug. Finally, a
street-level narcotics dealer would typically carry larger bills as a result of
sales and smaller bills for change, consistent with the denominations defendant
was carrying. The value of the
methamphetamine was between $600 and $1,200.

Defendant’s
wife testified she had found the mint container in a camping trailer in the
back of her house in October or November 2010, and she had put it on the
passenger seat of her car the same night defendant was driving the car. The car was registered as non-operable, and
she did not tell anyone she had put it there.
She did not give defendant permission to drive the car. She knew the container had drugs in it, in
two separate baggies, but she did not get rid of it because she did not know
whether her brothers or their friends owned the drugs, and she did not want to
have to pay for the drugs. Two or three
days earlier, she had given defendant four $100 bills to buy food for their horses
and other animals and for his own spending.
Defendant and other family members had access to the trailer where the
drugs had been found. When the wife was
asked in cross-examination if she knew who the drugs belonged to, the following
colloquy occurred:

“Q You don’t know that they weren’t your
husband’s, do you?

“A He doesn’t do drugs. He doesn’t sell drugs. I would say they weren’t his.

“Q But you don’t know if they were his drugs, do
you?

“A No.

“Q It’s possible he was hiding those drugs from
you, isn’t it?

“A He doesn’t hide things from me, so I don’t
think so.”

The jury found
defendant guilty of possession of methamphetamine for sale (Health & Saf.
Code, § 11378) and transportation of methamphetamine (Health & Saf.
Code, § 11379, subd. (a)).

The
trial court placed defendant on probation for three years. With respect to fines and fees, the trial
court made the following findings: “$70
court security fee. I’m going to impose
and stay the $70 security fee. I’ll
impose for Count 1 and Count 2, I’ll impose and stay. It will be pursuant to 654 on that since I
think the counts are related, and it might constitute a dual punishment. [¶]
And then I’ll go ahead and strike the attorney’s fees. I’ll impose the PSI fee, which is 505. Strike the booking fees. I’ll strike the supervision fees, as the
defendant’s probably going to be deported, so it’s not really going to cost
probation much money to supervise him.
I’ll reduce the payment schedule to $25 a month beginning 90 days from
release of custody. . . .
1202.4 and .44 fines of 200 are imposed and stayed. The .44 is pending successful completion of
probation.” In addition, among the
conditions of probation were the conditions that defendant pay “a $35.00
processing fee pursuant to PC 1205(d)” and “[p]ay a restitution fine in the
amount of $200.00 . . . .”

III. DISCUSSION

>A.
Jury Instructions

Defendant contends
the trial court erred by failing to instruct the jury sua sponte about the
defense of mistake of fact.href="#_ftn1"
name="_ftnref1" title="">^[1]

The trial court
must instruct the jury sua sponte on general principles of law relevant to the
issues raised by the evidence. (>People v. Ervin (2000) 22 Cal.4th 48,
90.) If it appears that the defendant is
relying on a particular defense, or substantial evidence supports such a
defense and the defense is consistent with the defendant’s theory of the case,
the trial court must instruct on the defense even in the absence of a
request. (People v. Barton (1995) 12 Cal.4th 186, 195.) Evidence is substantial if it would be
sufficient to raise a reasonable doubt about the defendant’s guilt. (People
v. Salas (2006) 37 Cal.4th 967, 982.)

Here, defendant’s
wife testified she had placed the mint container in the car defendant was
driving without telling him, and defendant had taken the car without her
knowledge. Defendant consented to a
search of the car after telling Officer Siggson the car did not contain any
contraband. After the presentation of
evidence, defense counsel moved to dismiss the charges on the ground there was
no evidence defendant knew of the presence of the drugs or knew of their nature
as a controlled substance. We will
assume for purposes of argument that the evidence supported an instruction on
the defense of mistake of fact.

We review error in failing to instruct on the
mistake-of-fact defense under the harmless error standard of >People v. Watson (1956) 46 Cal.2d 818,
836. (People v. Russell (2006) 144 Cal.App.4th 1415, 1431.) “‘[A] failure to instruct where there is a
duty to do so can be cured if it is shown that “the factual question posed by
the omitted instruction was necessarily resolved adversely to the defendant
under other, properly given instructions.”
[Citation.]’ [Citation.]” (People
v. Wooten (1996) 44 Cal.App.4th 1834, 1849.) Here, the jury was instructed that to find
defendant guilty of possession for sale of methamphetamine, it had to find,
among other things, that “1. The
defendant possessed a controlled substance;
[¶] 2. The defendant knew of its presence;
[and] [¶] 3. The
defendant knew of the substance’s nature or character as a controlled
substance; . . . .”
The jury was instructed that to find defendant guilty of transporting
methamphetamine, it had to find, among other things, that “1. The defendant transported a controlled
substance; [¶] 2. The
defendant knew of its presence; [and]
[¶] 3. The defendant knew of the substance’s nature
or character as a controlled substance; . . . .”

Thus, under the
instructions given, the jury could not have convicted defendant of either
charge without affirmatively finding that he knew of the presence of the
methamphetamine and knew of its nature and character as a controlled
substance. Any error in failing to
instruct the jury on mistake of fact was harmless. (Watson,
supra, 46 Cal.2d at p. 836.)

B.
Conduct Credits

Defendant contends
the case should be remanded with directions to the trial court to specify the
number of days of conduct credit awarded under Penal Code section 4019. The People concede error.

A
defendant sentenced to prison is entitled to credit against his term for all
actual days of presentence custody attributable to his crime. (People
v. Buckhalter (2001) 26 Cal.4th 20, 30.)
In addition, Penal Code section 4019 provides that the defendant may
earn conduct credit for good behavior and for satisfactory performance of any
labor assigned to him while in presentence custody. (Pen. Code, § 4019, subds. (b),
(c).) The court imposing sentence must
determine the number of days the defendant has been in custody and must add
applicable conduct credits, and “reflect the total in the abstract of
judgment.” (People v. Buckhalter, supra,
at p. 30.) Because the trial court
failed to do so, we will remand the matter for the trial court to calculate and
specify the number of days of conduct credit to which defendant is entitled.>

C.
Processing Fee

Defendant
contends, and the People agree, that the $35 processing fee under Penal Code
section 1205, subdivision (d) should be stricken. Penal Code section 1205, subdivision (d)
authorizes a fee for the processing of installment accounts for the payment of
fines and fees. However, under Penal
Code section 1205, subdivision (e), such a fee applies only “if the defendant
has defaulted on the payment of other fines.”
Defendant has not defaulted on another fine, so, by its terms, the
statute authorizing the processing fee is inapplicable. (Pen. Code, § 1205, subds. (d),
(e).) We therefore accept the People’s
concession of error and will order the $35 processing fee stricken.

D.
Hearing on Ability to Pay

The
trial court ordered defendant to pay $505 under Penal Code section 1203.1b for
the costs of presentencing investigation and preparation of the probation
report. Defendant contends the trial
court erred in failing to hold a hearing on his ability to pay those costs.

>1. Additional Background

The
probation report noted that defendant received $800 per month from
self-employment in construction. and that he was “also capable of obtaining
employment . . . .”
He had over $400 in cash when he was arrested.

The
probation report listed all the fees defendant would be required to pay, and
the probation officer recommended “that the court finds that the defendant has
the present ability to pay the cost of conducting the pre-sentence
investigation and preparing the report pursuant to Section 1203.1(b) of the
Penal Code.”

At
the sentencing hearing, defense counsel requested the trial court to consider
dismissing or reducing some of the fees but did not specifically ask for a
hearing on ability to pay. Defense
counsel stated, “As far as the probation memo, fines and fees, we’d ask the
Court to reduce all fines and fees within its discretion. Specifically, we’d ask the Court to strike
the reimbursement of appointed counsel fees.
We’d ask the court to strike the reimbursement of investigation cost and
reimbursement of supervision fees and also reduce the payment schedule to
offset any reductions that the Court decides to
reduce. . . . And to
reduce the restitution fine in Term 25 to the minimum.” The trial court responded, “I’ll change Term
22 [sic] as requested because that
may be a fair thing if he’s not able to make payments or something.

>2.
Forfeiture

The People contend defendant
forfeited his contention by failing to object at the sentencing hearing. (People
v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1076 (Valtakis) [holding that a
challenge to the imposition of probation costs was forfeited when defendant
failed to object to the fees at sentencing and had initialed a provision on a
plea entry form acknowledging he would be subjected to fines and other
penalties.] Here, however, defense
counsel did request the trial court to strike the investigative costs, and we
will therefore address the issue on the merits.

>3.
Analysis

In >Valtakis, the court held in the
alternative that even if the defendant had not forfeited his challenge, the
error in failing to determine his ability to pay was not prejudicial. (Valtakis,
supra, 105 Cal.App.4th at p.
1076.) The court noted that the
defendant had $255 on his person when he was arrested; he was working part time
and living with his mother, and he was not incapacitated. The court concluded that it was unlikely the
trial court would have found he lacked the ability to pay a $250 probation service
fee, even considering that the trial court had imposed $540 in other fees. (Ibid.) The court further noted that the defendant
had other statutory remedies, including an additional hearing on his ability to
pay during his probationary period and modification of judgment on a showing of
changed circumstances. (>Valtakis, supra, at p. 1076, citing Pen. Code, § 1203.1b, subds. (c),
(f).)

Here, defendant
had $442 on his person when arrested, and he reported income of $800 per month
from construction jobs. The other fines
and fees imposed (after the modifications we order on appeal) totaled less than
$300. Here, as in Valtakis, we conclude defendant suffered no prejudice from the
trial court’s failure to conduct a hearing on his ability to pay, and should
defendant’s circumstances change, he may pursue his other remedies under Penal
Code section 1203.1b, subdivisions (c) and (f).

E.
Restitution Fine

Defendant contends
the minutes of the sentencing hearing should be amended to reflect that the
trial court stayed the restitution fine under Penal Code section 1202.4. At the sentencing
hearing, the trial court orally imposed and stayed a restitution fine under
Penal Code section 1202.4, subdivision (b).
However, the clerk’s minutes of the hearing do not reflect the
stay. The People concede error.

Although a
restitution fine is mandatory under Penal Code section 1202.4, subdivision (b),
unless the trial court “finds compelling and extraordinary reasons for not
doing so, and states those reasons on the record,” and the trial court here
failed to state such reasons, the People have forfeited any challenge to the
error by their failure to object in the trial court. (People
v. Tillman (2000) 22 Cal.4th 300, 303.)
We will therefore order the minute order for the sentencing hearing to
be corrected to reflect that the restitution fine under Penal Code section
1202.4, subdivision (b) is stayed.

F. Other Fees and Assessments

Although neither
party has raised the issue, we note the trial court stayed the facilities
assessment and court security fees for count 2, citing Penal Code section
654. The facilities assessment fee (Gov.
Code, § 70373, subd. (a)(1)) and court security fee (Pen. Code,
§ 1465.8, subd. (a)(1)) are mandatory, and the trial court had no authority
to stay those fees. (>People v. Woods (2010) 191 Cal.App.4th
269, 272 and cases collected.) Moreover,
the fees are mandatory for each count
of which a defendant is convicted even if sentence for a count is stayed under
section 654, because the fees are not punitive in nature. (People
v. Sharret (2011) 191 Cal.App.4th 859, 865-870.)

A trial court’s
failure to impose a mandatory fee results in an illegal sentence, and when we
discover an illegal sentence during the pendency of an appeal, we affirm the
conviction and remand for a proper sentence.
(People v. Woods, >supra, 191 Cal.App.4th at pp. 272-273.)href="#_ftn2" name="_ftnref2" title="">^[2] We will therefore direct the trial court on
remand to lift the stay on the facilities assessment and court security fees as
to count 2.

IV. DISPOSITION

The trial court is
directed to impose a Penal Code section 1465.8, subdivision (a)(1) court
security fee and a Government Code section 70373, subdivision (a)(1) facilities
assessment fee as to count 2. In
addition, the minute order for the sentencing hearing shall be corrected to
reflect that the restitution fine under Penal Code section 1202.4, subdivision
(b)(1) is stayed and that the $35 processing fee under Penal Code section 1205,
subdivision (d) is stricken. The terms
and conditions of probation are to be corrected accordingly. The trial court is to determine the number of
days of conduct credit to which defendant is entitled. In all other respects, the judgment is affirmed.name="sp_999_4">

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS





HOLLENHORST

J.

We concur:





RAMIREZ

P.J.



KING

J.