P.
v. Lee
Filed 4/5/13 P. v. Lee
CA4/1
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE
DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MELODY LEE,
Defendant and
Appellant.
D062040
(Super. Ct.
No. SCE316239)
APPEAL from a judgment
of the Superior Court
of
County, John M. Thompson, Judge. Affirmed.
For three years, Melody
Lee lived with her boyfriend, codefendant Timothy Gross, and Timothy's
92-year-old mother, Sally. Lee helped
care for Sally. Lee pleaded guilty to
elder abuse likely to cause great bodily
neglect of Sally, which included evidence that Sally was left alone in a home
with no running water or edible food and in extremely unsanitary
conditions. The trial court sentenced
her to a total term of three years in prison.
It also imposed various fines and fees, including a $1,500 restitution
fine under Penal Code section 1202.4.
(Undesignated statutory references are to the Penal Code.) Lee did not object to the imposition of the
restitution fine on any grounds. She
appeals, contending the trial court abused its discretion when it imposed the
fine. We reject her contention and
affirm the judgment.
DISCUSSION
Lee contends the trial court abused its discretion and
violated her right to due process when
it ordered her to pay a $1,500 restitution fine under section 1202.4 because
there was no evidence to support the order and the trial court failed to
consider the relevant factors under subdivision (d) of section 1202.4 or her
ability to pay the fine. She
acknowledges that she failed to raise this issue in the trial court, but
contends the forfeiture doctrine does not apply because her claim is based on
the sufficiency of the evidence. Alternatively,
she contends her counsel was ineffective by failing to object to the fine.
Lee forfeited the claim
that the evidence did not support the fine by failing to object at her
v. Nelson (2011) 51 Cal.4th 198, 227; People
v. Gamache (2010) 48 Cal.4th 347, 409 (Gamache).) Nonetheless, we will review her claim on its
merits to avoid her ineffective assistance of counsel claim and because the
California Supreme Court is currently considering whether the forfeiture
doctrine applies with respect to booking fees.
(People v. Mason, review
granted Aug. 29, 2012, S203747; People v.
McCullough, review granted June 29, 2011, S192513.)
"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." (§ 1202.4, subd. (b).) The "Legislature intended restitution
fines as punishment." (
361.) At the time of Lee's offense,
section 1202.4 provided that when a defendant is convicted of a felony, the
trial court must impose a restitution fine that is not less than $200 and not more
than $10,000. (§ 1202.4, former subd.
(b)(1) as amended Stats. 2011, ch. 358, § 1, pp. 4008–4009 [increasing minimum
restitution fine to $240 as of January 1, 2012].)
The court may set the
fine by multiplying $200 by the number of years of imprisonment ordered and
multiplying that number by the number of felony convictions. (§ 1202.4, subd. (b)(2).) Alternatively, the court may exercise its
discretion to set the restitution fine without reference to the statutory
formula. (§ 1202.4, subd. (b)(1).) Regardless of what method the trial court
uses to set the fine, in setting the fine at more than $200, it "shall
consider any relevant factors, including . . . the defendant's inability to
pay, the seriousness and gravity of the offense and the circumstances of its commission,
. . . and the number of victims involved in the crime." (§ 1202.4, subd. (d).)
It is the defendant's
burden to show his or her inability to pay (§ 1202.4, subd. (d)), and
"[t]he statute thus impliedly presumes a defendant has the ability to pay." (People
v. Romero (1996) 43 Cal.App.4th 440, 449.)
The court is not required to make specific findings or conduct a
separate hearing concerning the amount of the fine to be imposed under section
1202.4. (§ 1202.4, subd. (d);
We will not overturn a decision of the trial court in setting the amount
of the restitution fine absent a showing of an abuse of discretion. (People
v. Lewis (2009) 46 Cal.4th 1255, 1321.)
Lee does not " 'identify anything in the
record indicating the trial court breached its duty to consider [her] ability
to pay; as the trial court was not obligated to make express findings
concerning [her] ability to pay, the absence of any findings does not
demonstrate it failed to consider this factor.
Thus, we cannot say on this record that the trial court abused its
discretion.' " (People
v. Nelson, supra, 51 Cal.4th at
p. 227, citing Gamache,
In any event, in determining whether a defendant has the
ability to pay a restitution fine, the trial court may consider the defendant's
future ability to pay, including the ability to earn wages while in
prison. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) Additionally, where the defendant is capable
of supporting herself with legitimate employment, the trial court may also
consider her ability "to find and maintain productive employment once
[her] sentence is completed." (
782, 786.)
Here, the probation report contained evidence showing
Lee had future earning capacity. Lee was
46 years old, had a high school education, attended two years of junior college
and had, remarkably, completed 62 certification programs at Grossmont Adult
School. Although, she had been receiving
"SSI" benefits for the past two years due to medical problems and
reportedly had untreatable cancer, the probation report noted inconsistencies
in Lee's story regarding her illness. (
Cal.App.4th 486, 505 [absent showing of "absolute inability to ever
pay" fine, amount of fine was not abuse of discretion even though payment
would be difficult and would take a long time and fine might never be paid].)
Finally, while the trial court set the fine above the
$200 statutory minimum, it was well below the statutory maximum of
$10,000. (§ 1202.4, former subd.
(b)(1).) Given the evidence that Sally
suffered serious neglect over a long period of time, we cannot conclude that
the trial court abused its discretion by imposing the $1,500 fine.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
