People v. Crist CA2/6 ( 2021 )

Filed 9/22/21 P. v. Crist CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306311
(Super. Ct. No. 2019039659)
Plaintiff and Respondent, (Ventura County)
v.
LAWRENCE WILLIAM
CRIST,
Defendant and Appellant.
Lawrence William Crist appeals the judgment entered after
he pleaded guilty to possessing methamphetamine for sale
(Health & Saf. Code, § 11378). The trial court sentenced
appellant to two years felony jail and awarded him 237 days of
presentence custody credit. Appellant was also ordered to pay a
$1,200 restitution fine (Pen, Code,1 § 1202.4, subd. (b)), a $503.87
booking fee (Gov. Code, § 29550, former § 29550.1), a $2,060
All statutory references are to the Penal Code unless
1
otherwise stated.
presentence investigation fee (former § 1203.1b), a $50 lab
analysis fee (Health & Saf. Code, § 11372.5), and a drug program
fee and associated penalty assessments totaling $600 (id.,
§ 11372.7). Appellant contends the court erred in imposing these
fines, fees and assessments without holding a hearing on his
ability to pay them. We vacate the presentence investigation and
booking fees, reverse the remaining challenged fines, fees and
assessments, and remand for an ability to pay hearing.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded no contest prior to trial, the
relevant facts are derived from the reporter’s transcript of the
preliminary hearing. On December 4, 2019, appellant was
arrested on an outstanding warrant. Appellant was searched and
found to be in possession of a small amount of heroin. During a
search of appellant’s apartment and vehicle, detectives recovered
over 148 gross grams of methamphetamine as well as digital
scales, plastic baggies, and a loaded firearm magazine.
Appellant was charged with and pleaded not guilty to being
a person prohibited from possessing a firearm or ammunition
(§ 30305, subd. (a)(1)) and possessing methamphetamine for sale
(Health & Saf. Code, § 11378). He subsequently withdrew his
plea and pleaded guilty to possessing methamphetamine for sale.
In his felony disposition statement, appellant acknowledged
among other things that he would be “ordered to pay a restitution
fine of not less than $300 and not more than $10,000” and “must
prepare and file a disclosure of all assets, income, and liabilities”
as provided in section 1202.4. Appellant further acknowledged
that he “may be ordered to pay” a $50 lab analysis fee pursuant
to Health and Safety Code section 11372.5, a $150 drug program
2
fee under Health and Safety Code section 11372.7, and associated
penalty assessments.
Appellant subsequently filed a personal financial statement
reflecting that he currently had no job, assets, or other source of
income. The probation report, which made no mention of
appellant’s personal financial statement or his ability to pay fines
and fees, recommended that he be ordered to pay a $503.87
booking fee under Government Code section 29550 and former
section 29550.1, a $1,200 restitution fine pursuant to section
1202.4, subdivision (b), a $50 lab analysis fee pursuant to Health
and Safety Code section 11372.5, and “a fine [drug program fee]
of $600, including penalty assessment,” pursuant to Health and
Safety Code section 11372.7.2 The probation officer also
recommended that “[t]he Court find that the defendant has the
ability to pay for the cost of the presentence investigation in the
amount of $2,060 and the Court order[] the defendant to pay such
costs.”
At the sentencing hearing, the trial court imposed all of the
fines, fees and assessments recommended by the probation
officer. At defense counsel’s request, the court found that
appellant did not have the ability to pay a $300 public defender
fee (Gov. Code, former § 27712). The court expressly found,
however, that appellant had the ability to pay the $2,060
presentence investigation fee.
At the conclusion of the hearing, appellant asked the court
if he had the right to appeal the fines, fees and assessments.
Defense counsel stated that appellant “was asking to reduce any
2It is unclear how the probation officer calculated the drug
program fee and related penalty assessments under Health and
Safety Code section 11372.7.
3
fines or fees at least stay them.” Appellant explained: “I’m on
aid. I’m on food stamps. You know what I mean? So I don’t have
the means right now to pay the fees, the fines. You know, I
just—I got to work. I feel they should be waived, or I’ll be in the
same situation that I was in last time.”
The court responded: “I appreciate you speaking up. . . .
[T]his is the time and place for you to make any objections as far
as the Court imposing the fines. I’m going to take that as you
making that objection now, and, for the record, you cited People
[v.] Dueñas [(2019) 30 Cal.App.5th 1157 (Dueñas)]. It is this
Court’s opinion, although Dueñas, I believe, is still good law . . . ,
there have been other decisions that have analyzed the issue a
little differently. They’ve analyzed it under more of an 8th
Amendment cruel and unusual disproportionate [sic], and based
on the charges, based on your criminal history, based on the
underlying facts, I don’t believe that they are excessive, and I
believe they are appropriate. So your objection is noted, and it’s
overruled.” The court then made clear that appellant had the
right to appeal its ruling.
DISCUSSION
Appellant contends the trial court erred in ordering him to
to pay a $1,200 restitution fine (§ 1202.4, subd. (b)), a $503.87
booking fee (Gov. Code, § 29550, former § 29550.1), a $2,060
presentence investigation fee (former § 1203.1b), a $50 lab
analysis fee (Health & Saf. Code, § 11372.5), and a drug program
fee and associated penalty assessments totaling $600 (id.,
4
§ 11372.7), without holding a hearing to determine his ability to
pay. We agree.3
Imposition of the restitution fine, the presentence
investigation fee, and the drug program fee and related penalty
assessments were all contingent upon a finding of appellant’s
ability to pay. (§ 1202.4, subd. (b) [restitution fine over $300];
former § 1203.1b [presentence investigation fee]; Health & Saf.
Code, § 11372.7, subd. (b) [drug program fee].) “Where, as in this
case, a statute posits ability to pay as a precondition of a
requirement to pay a fee, . . . the defendant has the right to a
determination of his ability to pay the fee before the court may
order payment. [Citation.]” (People v. Neal (2018) 29
Cal.App.5th 820, 826.) Because appellant asserted an inability to
pay and submitted a personal financial statement indicating that
he had no current income or assets, and there is no evidence in
the record to refute that statement, the court erred in imposing
the restitution fine, the presentence investigation fee, and the
drug program fee and related assessments without holding an
ability to pay hearing.
3 We reject the People’s assertion that the appeal must be
dismissed because appellant’s notice of appeal was not filed
within 60 days of the date of the judgment, as required under
rule 8.406(a)(1) of the California Rules of Court. Although
appellant’s notice of appeal was not filed in the Ventura County
Superior Court until June 10, 2020, i.e., 76 days after he was
convicted and sentenced, we grant appellant’s request for judicial
notice of the court’s order reflecting that the clerk’s office was
closed from March 19, 2020 until June 10, 2020 due to the
COVID-10 pandemic.
5
Moreover, presentence investigation fees imposed under
former section 1203.1b and booking fees imposed under former
Government Code section 29550.1 are no longer valid or
enforceable because both sections were repealed on July 1, 2021.
Section 1465.9 and Government Code section 6111, which both
became effective on July 1, provide that on and after that date
the unpaid balance of any such fees imposed by the court “shall
be unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.” (§ 1465.9, subd. (a); Gov.
Code, § 6111, subd. (a).) Accordingly, we shall order the judgment
vacated to the extent those fees were imposed.
In addition, the People concede that the $50 lab analysis
fee under Health and Safety Code section 11372.5 should not
have been imposed without a determination of appellant’s ability
to pay. This fee is “not punitive in nature, and we agree that
‘imposing unplayable fines on indigent defendants is not only
unfair, it serves no rational purpose, fails to further the
legislative intent, and may be counterproductive.’ [Citation.]”
(People v. Kopp (2019) 38 Cal.App.5th 47, 95, review granted Nov.
13, 2019, S257844.)
Accordingly, we vacate the order imposing the presentence
investigation and booking fees, reverse the remaining challenged
fines, fees and assessments, and remand for an ability to pay
hearing. In doing so, we note that appellant bears the burden of
proving his inability to pay and that he evaluation of this issue
includes his future ability to pay. (People v. Montes (2021) 59
Cal.App.5th 1107, 1122.)
DISPOSITION
The order imposing a $2,060 presentence investigation fee
(former § 1203.1b) and a $503.87 booking fee (former Gov. Code,
6
§ 29550.1) is vacated. The order imposing a $1,200 restitution
fine (§ 1202.4, subd. (b)), a $50 lab analysis fee (Health & Saf.
Code, § 11372.5), and a drug program fee and associated penalty
assessments totaling $600 (id., § 11372.7), is reversed. On
remand, the trial court shall hold a hearing on appellant’s ability
to pay the restitution fine, lab analysis fee, and drug program fee
and associated penalty assessments.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
TANGEMAN, J.
7
Gilbert Romero, Judge
Superior Court County of Ventura
______________________________
John Derrick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Rama R. Maline,
Deputy Attorney General, for Plaintiff and Respondent.