P. v. Bonilla

Filed 2/16/10 P. v. Bonilla 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Defendant Carlos Bonilla pled no contest to using another persons identity for an unlawful purpose on April 19, 2008, and admitted he had a strike conviction. In exchange, 37 other related felony counts and 3 prior prison term allegations were to be dismissed, with the understanding that the facts of those counts could be used at sentencing, and that the federal government would not prosecute defendant. Defendant was also promised a six-year prison term. The trial court sentenced defendant to six years in prison, and defendant timely filed this appeal.

On appeal, defendant contends, and the People concede, that the trial court neglected to dismiss the 37 counts and 3 prior prison term allegations, as agreed in the plea agreement. We accept this concession of error.

Defendant also contends the trial court abused its discretion by imposing a $1,200 restitution fine, because he has no assets, no job prospects, and large child support obligations, therefore he lacks the ability to pay such a large fine. We find no abuse of discretion on this record.

We affirm the judgment, but remand for the trial court to formally dismiss the charges, consistent with the plea bargain, enter the reasons for such dismissal in the minutes, and prepare a new abstract of judgment.

FACTS

The factual basis for the plea shows that on April 19, 2008, defendant passed a check belonging to the victim at an Old Navy store, and that defendant has a 1987 first degree burglary conviction, alleged as a strike.

DISCUSSION

I

Dismissal Of Remaining Charges

Defendant contends, and the People concede, that the trial court neglected to dismiss the charges it was supposed to dismiss pursuant to the approved plea bargain. We will direct the trial court to dismiss those charges and state the reasons therefor in the courts minutes. (See People v. Bonnetta (2009) 46 Cal.4th 143, 149-153.)

Defendant also notes what appears to be a typographical error in the abstract. The abstract should be amended to indicate defendant admitted a strike. The trial court must correct this mistake as well.

II

Restitution

Defendant contends the trial court abused its discretion by imposing a $1,200 restitution fine instead of the statutory minimum fine of $200 because the record shows he lacks the ability to pay such a fine. In particular, he claims he owes a great deal of child support, has no assets, and has poor future job prospects. We find no abuse of discretion.

Penal Code section 1202.4 provides in part as follows:

(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.

(1) The 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), if the person is convicted of a felony . . . .

[] . . . [] 

(c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendants inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum. . . .

(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) . . . minimum, the court shall consider any relevant factors including, but not limited to, the defendants inability to pay . . . . Consideration of a defendants inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.

Before accepting defendants plea, the trial court advised defendant that the likely restitution fine would be $1,200, the amount the court later imposed. Defendants $1,200 fine comports with the statutory norm, which recommends that a fine be calculated as $200 times the number of years sentenced to prison (six years) times the number of counts (one count). (Pen. Code,  1202.4, subd. (b)(2).) The trial court used this statutory formula to set the amount.

The record shows defendant was 42 years old, had graduated from high school and was a construction worker, certified as a

plumber and a member of a labor union; he also had experience operating equipment, such as a tow truck, backhoe, scoop shovel, and a forklift. He was not a mere unskilled laborer, as he asserts.

The record also indicates defendant owed $254 per month in child support and that he was in arrears, by his assertion in the amount of about $12,000, and according to earlier documentation, by nearly $10,000.[1]

The record also shows defendants bad-check spree caused over $20,000 in losses to his victims, and the record shows that defendants accomplices gave the proceeds to defendant. The trial court awarded victim restitution to various victims, totaling over $20,000.

The record supports the conclusion that defendant has the ability to pay the fine, although it might take a long time. First, Consideration of a defendants inability to pay may include his or her future earning capacity. (Pen. Code,  1202.4, subd. (d).) Defendants skills as a plumber and as an equipment operator are marketable skills, and when he leaves

prison, there is no reason he cannot obtain gainful employment. (See People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [the probation report indicates that appellant has been employed in the past. There is no evidence that he is physically or mentally unable to find legitimate employment upon completion of his sentence].) Defendant contends that his felony conviction makes him unemployable, or at least underemployable. But defendants first felony conviction was in 1987, and yet he was able to obtain employment after that, or be self-employed, even after subsequent convictions and prison terms. We will not infer that another conviction and prison term will make it impossible for him to find gainful work.

Second, although defendant contends that his age, prison sentence, and child support obligations show he is unable to pay the fine, we recently rejected such a claim: Here, defendant put forth figures to show, at current prison wages, it would be very difficult for him to pay the fine; it would take a very long time and the fine might never be paid. Defendant did not, however, show an absolute inability to ever pay the fine. (People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

Defendant had the burden to show he lacked the ability to pay. (Pen. Code,  1202.4, subd. (d).) On this record we find no abuse of discretion on the part of the trial court in assessing a restitution fine according to the statutory norm.

DISPOSITION

The judgment is affirmed. The trial court is directed to dismiss the charges to implement the plea bargain, state the reasons therefor in the minutes, and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.

ROBIE , J.

We concur:

HULL, Acting P. J.

BUTZ , J.

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[1] Appellate counsel asserts defendants monthly child support obligation will continue at the current rate and therefore his arrearages will exceed $30,000 by the time he leaves prison. But the fact of his six-year prison sentence might support a modification of his monthly support obligations.