P. v. Zuniga
Filed 4/19/13 P. v. Zuniga CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
>
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN GARDUNO ZUNIGA, Defendant and Appellant. | G046419 (Super. Ct. No. 11CF2422) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, David A. Hoffer, Judge. Affirmed as modified in part, and reversed
and remanded in part.
Steven J. Carroll, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton
and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
Introduction
Defendant
Adrian Garduno Zuniga was convicted of possessing
and transporting a controlled substance, and pled guilty to driving with a
suspended license. Defendant does not
challenge his convictions; the only issues raised on appeal are related to
defendant’s sentence.
First,
defendant argues, and the Attorney General concedes, that the trial court
imposed an invalid restitution fine. We will order the judgment modified to
reflect the correct fine amount.
Second,
defendant argues the trial court incorrectly calculated his presentence custody
credits. We agree, and remand the matter
to the trial court to make a correct award of presentence
Finally,
defendant argues the trial court erred by ordering him to pay reasonable
probation costs without first determining his ability to pay. We agree, and remand to allow the trial court
to make a determination of defendant’s ability to pay reasonable probation
costs.
Statement of Facts and Procedural History
Because
the issues raised on appeal by defendant are unrelated to the specifics of the
underlying crimes, we provide an abbreviated summary of the relevant
facts. Defendant was arrested after a
police officer observed him driving erratically. The arresting officer found bindles of
cocaine in defendant’s hand and inside the car that defendant was driving.
A
jury convicted defendant of transportation of a controlled substance (Health
& Saf. Code, § 11352, subd. (a)), and possession of a controlled
substance (id., § 11377,
subd. (a)). In a
guilty to driving a motor vehicle while his driving privilege was suspended or
revoked (Veh. Code, § 14601.2, subd. (a)), and admitted a prior
conviction for violating Vehicle Code section 14601.1,
subdivision (a).
The
trial court suspended imposition of sentence and placed defendant on three
years’ formal probation; one condition of probation was that defendant serve
214 days in jail, with credit for time served totaling 214 days (143 days
of actual custody and 71 days of conduct credit). Defendant was also ordered to pay a mandatory
state restitution fine of $240, pursuant to Penal Code section 1202.4,
subdivision (b). The court ordered
defendant “to pay the cost of probation or mandatory supervision according to
his ability to pay as directed by the probation or the mandatory supervision officer.†Defendant timely appealed.
Discussion
I.
trial court imposed an invalid restitution fine.
Effective
January 1, 2012, the minimum restitution fine, pursuant to Penal Code
section 1202.4, subdivision (b)(1), increased from $200 to $240. (Stats. 2011, ch. 358, § 1.) The trial court in this case imposed a $240
fine, although the minimum restitution fine at the time the offense was
committed was $200. Defendant contends
the imposition of the $240 minimum restitution fine violates the ex post facto
provisions of the
States and California Constitutions.
The Attorney General concedes that the minimum restitution fine should
be $200 in this case. We agree and will
therefore order the judgment modified accordingly.
II.
trial court must recalculate defendant’s presentence custody credits.
A
defendant is entitled to credit for actual time spent in custody between the
date of his or her arrest and his or her sentencing, as well as conduct credit
when authorized by statute and earned.
(Pen. Code, §§ 2900.5, subd. (a), 4019,
subd. (a)(1).) In this case,
defendant spent 144 days in custody; by statute, he was entitled to an
additional 72 days of good conduct credit, for a total of 216 days of
presentence custody credits. At
sentencing, however, the trial court awarded defendant 214 total days, with 143
days of actual credits, plus 71 days of good conduct credits.
The
Attorney General argues only that defendant is not entitled to have the problem
corrected on appeal because defendant did not object to the calculation of
presentence credits in the trial court, and asserts that defendant can request
the trial court to recalculate the credits if the incorrect calculation ever
becomes an issue. She does not contend
the trial court properly calculated the presentence custody credits to which
defendant is entitled.
The
failure to award the legally mandated amount of presentence custody credits is
an unauthorized sentence that may be corrected at any time. (People
v. Gisbert (2012) 205 Cal.App.4th 277, 280.) We remand the matter to the trial court to
award defendant the correct amount of presentence custody credits.
III.
trial court must determine defendant’s ability
to pay reasonable probation costs.
Defendant
argues the trial court erred when it ordered him to pay reasonable probation
costs without first concluding he had the ability to pay those costs, as
required by Penal Code section 1203.1b, subdivision (b).
The
Attorney General contends the trial court’s order that defendant “pay the cost
of probation or mandatory supervision according to his ability to pay as
directed by the probation or the mandatory supervision officer†complied with
Penal Code section 1203.1b, and the court did not need to determine for
itself whether defendant had the ability to pay such costs.
We
find the language of Penal Code section 1203.1b to be clear and
unambiguous—the trial court may order a defendant to pay the reasonable costs
of probation only after the court makes a determination that the defendant has
the ability to pay those costs.
name="_ftnref2" title="">[2] The trial court in this case failed to do
so. We find this case indistinguishable
from People v. O’Connell (2003) 107
Cal.App.4th 1062, 1067‑1068, in which the appellate court remanded the case
because “there is no indication that the probation department or the court made
a determination of appellant’s ability to pay for formal probation supervision,
or that appellant was ever informed by anyone of his right to a court hearing
on his ability to pay, or that appellant knowingly and intelligently waived
such a hearing, as required by . . . Penal Code
section 1203.1b. [Citation.]â€
We
remand the matter to the trial court to make a determination of defendant’s
ability to pay the reasonable costs of probation. On remand, the trial court must follow the
guidance of the appellate court in People
v. O’Connell, supra, 107
Cal.App.4th at page 1068: “We note
that any order for payment of probation costs should be imposed not as a
condition of probation but rather as a separate order. [Citation.]â€
Disposition
The
judgment is modified to reflect that the minimum restitution fine is $200. The portion of the order granting probation
that requires defendant to pay the costs of probation is vacated. The case is remanded to the trial court to
(1) determine whether defendant has the ability to pay the reasonable
costs of probation or mandatory supervision, and (2) to award defendant
the correct amount of presentence custody credits. In all other respects, the judgment is
affirmed.
FYBEL,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
trial court to the imposition of reasonable probation costs without a finding
of ability to pay. The Attorney General,
however, does not argue the issue has been forfeited on appeal. We therefore address the issue on the merits.
relevant part: “(a) In any case in which a defendant is convicted of an offense and
is the subject of any preplea or presentence investigation and report, whether
or not probation supervision is ordered by the court, and in any case in which
a defendant is granted probation or given a conditional sentence, the probation
officer, or his or her authorized representative, taking into account any
amount that the defendant is ordered to pay in fines, assessments, and
restitution, shall make a determination of the ability of the defendant to pay
all or a portion of the reasonable cost of any probation supervision or a
conditional sentence . . . . The probation officer shall inform the
defendant that the defendant is entitled to a hearing, that includes the right
to counsel, in which the court shall make a determination of the defendant’s
ability to pay and the payment amount.
The defendant must waive the right to a determination by the court of
his or her ability to pay and the payment amount by a knowing and intelligent
waiver. [¶] (b) When the defendant fails to waive the right provided in
subdivision (a) to a determination by the court of his or her ability to pay
and the payment amount, the probation officer shall refer the matter to the
court for the scheduling of a hearing to determine the amount of payment and
the manner in which the payments shall be made.
The court shall order the
defendant to pay the reasonable costs if it determines that the defendant has
the ability to pay those costs based on the report of the probation officer, or
his or her authorized representative.â€
(Italics added.)
