People v. Bedford CA5 ( 2020 )

Filed 11/13/20 P. v. Bedford CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078236
Plaintiff and Respondent,
(Kern Super. Ct. No. DF012972A)
v.
L C BEDFORD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf,
Judge.
Jyoti Meera Malik, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant/defendant L C Bedford, a state prisoner, pleaded no contest to felony
obstructing or resisting an executive officer (Pen. Code, § 69)1 and admitted a prior strike
conviction, for a stipulated second strike term of 32 months in prison.
On appeal, he argues the matter should be remanded so the court can consider
whether to grant pretrial mental health diversion pursuant to section 1001.36. He also
asserts the court improperly imposed a restitution fine and other fees without finding he
had the ability to pay those amounts in violation of his constitutional right to due process,
based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Based on the allegations in the complaint, on or about February 24, 2017,
defendant was a state prison inmate when he allegedly obstructed an officer and
attempted to steal bananas from the prison.
On August 14, 2017, a felony complaint was filed that charged defendant with
count 1, battery by a person confined in a state prison upon Officer Mercy Dalby, a
nonprisoner (§ 4501.5) and count 2, misdemeanor attempted petty theft of bananas from
California Department of Corrections and Rehabilitation (CDCR) (§§ 664/488). It was
further alleged defendant had one prior strike conviction and eight prior prison term
enhancements (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the
allegations.
Plea proceedings
On May 31, 2018, the court granted the People’s motion to amend the complaint
to add count 3, felony obstructing or resisting an executive officer (§ 69) with a prior
strike conviction.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
Thereafter, defendant pleaded no contest to count 3 and admitted the prior strike
conviction, pursuant to a negotiated disposition for a stipulated second strike lower term
of 32 months in state prison. The court dismissed the remaining charges and allegations
on condition that defendant’s no contest plea remain in effect.
On June 27, 2018, section 1001.36 was signed into law.
Motion to withdraw the plea
On June 29, 2018, defendant advised the court that he wanted to withdraw his plea
and admission. The court continued the matter and set a hearing for appointment of
counsel for a possible motion to withdraw the plea.
On July 2, 2018, the court temporarily relieved the deputy public defender and
appointed another attorney to investigate a possible motion to withdraw his plea.
On September 26, 2018, the court convened a hearing on defendant’s possible
motion to withdraw the plea. The newly appointed attorney stated he had reviewed the
entirety of the record and concluded that he could not make a motion to withdraw in good
faith. The court denied defendant’s motion to withdraw the plea, relieved the second
counsel, and reappointed the deputy public defender.
Defendant addressed the court and said he wanted to withdraw his plea and
admission.
“I’m a triple CMS. And that’s a mental health program at Kern County
State Prison. And I was on medication at the time, and I wasn’t aware of
what you was saying [sic] or what [my attorney] was saying. I was going
on what [my attorney] was telling me to do. He was telling me sign this,
sign that, put my fingerprint here and there. And I just – like I said, when
he was – I was doing what he was telling me to do. I wasn’t aware of
nothing going on. I didn’t understand nothing that you said, nothing that he
said. I was just doing what he told me to do. And I got the list of names of
medication that I take. I don’t – I can’t pronounce the name. I take it three
times a day – in the morning….”2
2 Accordingto defendant, his references to “triple CMS” was to the Correctional
Clinical Case Management System (CCCMS), which is part of the Mental Health
3.
The court reviewed the transcript of the plea proceedings and decided to trail the
matter so the attorney who represented defendant at the plea hearing could appear.
On October 3, 2018, the court convened another hearing on defendant’s motion to
withdraw his plea and admission. Defense counsel said he determined there was no legal
basis to withdraw the plea, but that defendant insisted he did not understand what was
going on at the time. Defendant again addressed the court:
“I would like to add that on the day that – for the record, on the day that I
was here for my sentencing, and as I explained to you last Wednesday, that
I wasn’t understanding what you was saying, what [the prosecutor] was
saying, right? Because I was – I take medication, right? I’m a … triple
CMS patient. And I misspoke. But at the prison – and I got my paperwork
here stating that the medicine that I’m taking, that it hindered my thinking.
And at that time I wasn’t understanding what was going on.”
The court directed defendant to give the paperwork about his medication to the
bailiff and included the documents in the record. Defendant stated he had marked the
medications that he was taking.3
The court denied defendant’s motion to withdraw his plea, and said it conducted
the plea hearing, observed defendant discussed the matter with his attorney, found
defendant was cognizant and aware of the circumstances, and held his claim was not
credible.
Defendant stated that when he talked to his attorney at the plea hearing, he was
trying to explain about “medications, about the part that I wasn’t even understanding
what [the court] was saying,” and that he was “under distress from the medication I was
on.” The court denied the motion.
Delivery System for state prison inmates. (See, e.g., Coleman v. Brown (E.D. Cal. 2014)
28 F.Supp.3d 1068, 1073–1075.)
3 The court treated these documents as confidential, and they have been filed with
this court under seal.
4.
Sentencing
On the same day, the court sentenced defendant to the lower term of 16 months,
doubled to 32 months as the second strike term, pursuant to the negotiated disposition, to
be served consecutive to the term he was already serving in state prison.
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)) and suspended
the parole revocation fine of $300 (§ 1202.45). It also imposed a court operations
assessment fee of $40 (§ 1465.8, subd. (a)), and a criminal conviction assessment of $30
(Gov. Code, § 70373).
On October 5, 2018, defendant filed a timely notice of appeal, and requested and
received a certificate of probable cause.
DISCUSSION
I. Mental Health Diversion
Defendant contends the matter must be remanded for the court to consider his
eligibility for pretrial diversion under section 1001.36 based on his alleged mental health
problems. The People assert defendant has forfeited review of this issue.
We will review section 1001.36, the procedural history of this case, and the
California Supreme Court’s ruling in People v. Frahs (2020) 9 Cal.5th 618 (Frahs) and
find remand is required in this case.
A. Enactment of Section 1001.36
Effective June 27, 2018, “the Legislature enacted … sections 1001.35 and1001.36,
which created a pretrial diversion program for certain defendants with mental health
disorders. [Citation.]” (Frahs, supra, 9 Cal.5th at p. 624, fn. omitted.)
“Section 1001.36 authorizes a pretrial diversion program for defendants with
qualifying mental disorders. The statute defines ‘ “pretrial diversion” ’ as ‘the
postponement of prosecution, either temporarily or permanently, at any point in the
judicial process from the point at which the accused is charged until adjudication, to
allow the defendant to undergo mental health treatment ....’ (§ 1001.36, subd. (c).) The
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stated purpose of the diversion statute ‘is to promote all of the following: [¶]
(a) Increased diversion of individuals with mental disorders to mitigate the individuals’
entry and reentry into the criminal justice system while protecting public safety. [¶]
(b) Allowing local discretion and flexibility for counties in the development and
implementation of diversion for individuals with mental disorders across a continuum of
care settings. [¶] (c) Providing diversion that meets the unique mental health treatment
and support needs of individuals with mental disorders.’ (§ 1001.35, subds. (a)–(c).)”
(Frahs, supra, 9 Cal.5th at p. 626.)
“As originally enacted, section 1001.36 provided that a trial court may grant
pretrial diversion if it finds all of the following: (1) the defendant suffers from a
qualifying mental disorder; (2) the disorder played a significant role in the commission of
the charged offense; (3) the defendant’s symptoms will respond to mental health
treatment; (4) the defendant consents to diversion and waives his or her speedy trial right;
(5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an
unreasonable risk of danger to public safety if treated in the community. (Former
§ 1001.36, subd. (b)(1)–(6).) Section 1001.36 was subsequently amended by Senate Bill
No. 215 (2017–2018 Reg. Sess.) (Senate Bill 215) to specify that defendants charged
with certain crimes, such as murder and rape, are ineligible for diversion. (§ 1001.36,
subd. (b)(2), as amended by Stats. 2018, ch. 1005, § 1.)” (Frahs, supra, 9 Cal.5th at
pp. 626–627.)
“If the defendant makes a prima facie showing that he or she meets all of the
threshold eligibility requirements and the defendant and the offense are suitable for
diversion, and the trial court is satisfied that the recommended program of mental health
treatment will meet the specialized mental health treatment needs of the defendant, then
the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).) The
maximum period of diversion is two years. (Id., subd. (c)(3).) If the defendant is
subsequently charged with an additional crime, or otherwise performs unsatisfactorily in
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the assigned program, then the court may reinstate criminal proceedings. (Id., subd. (d).)
‘If the defendant has performed satisfactorily in diversion, at the end of the period of
diversion, the court shall dismiss the defendant’s criminal charges that were the subject of
the criminal proceedings at the time of the initial diversion’ and ‘the arrest upon which
the diversion was based shall be deemed never to have occurred.’ (Id., subd. (e).)”
(Frahs, supra, 9 Cal.5th at p. 627.)
B. Procedural History
On May 31, 2018, defendant entered into the negotiated disposition and pleaded
no contest to felony obstructing or resisting an executive officer (§ 69) with a prior strike
conviction.
As noted above, on June 27, 2018, section 1001.36 was signed into law and
became effective.
On June 29, July 2, 2018, September 26, and October 3, 2018, the court held
proceedings on defendant’s intent to file a new trial motion. The court appointed a new
attorney to investigate defendant’s claims of errors. After an investigation, the newly
appointed counsel said there was no basis for a new trial motion. Defendant addressed
the court and said he was on medication during the plea hearing and did not understand
what happened. The court denied defendant’s motion to withdraw his plea and conducted
the sentencing hearing.
Defendant never argued his plea should be withdrawn because of the enactment of
section 1001.36, or claimed he had a mental health problem that was a factor in his
commission of the charged offenses.
C. The Parties’ Contentions
In the initial briefing in this case, defendant argued his no contest plea, conviction,
and sentence must be conditionally reversed and the matter remanded for the court to
consider whether he should receive pretrial diversion pursuant to section 1001.36, a
statute enacted after he pleaded no contest and before the numerous hearings on his
7.
motion to withdraw his plea. Defendant argued the newly enacted statute is retroactive
and would apply to his case since it is not yet final. Defendant further argued the record
supports a prima facie case for diversion based on his statements at the hearing on the
motion to withdraw his plea, the list of medications that he presented in support of the
motion (that is sealed as confidential), and his custody status at CCCMS.
Defendant also argued he did not forfeit this issue because his statements at the
hearing on the motion to withdraw placed the court on notice that he had mental health
disorders. In the alternative, defendant asserted counsel was prejudicially ineffective for
failing to raise the diversion at the subsequent hearings.
In response, the People asserted that defendant’s case was adjudicated when he
entered his plea and was sentenced, it could not be remanded for “pretrial diversion,”
section 1001.36 is not retroactive, and he forfeited this issue since he never requested
diversion.
D. Frahs
At the time of the initial briefing in this case, there was a split among appellate
courts as to whether section 1001.36 was retroactive to permit remand for a diversion
hearing after the defendant had been convicted and sentenced. (See, e.g., Frahs, supra, 9
Cal.5th at p. 631, fn. 2.) In Frahs, the California Supreme Court resolved the conflict and
held section 1001.36 is fully retroactive to cases not yet final on appeal under certain
circumstances. (Id. at p. 624.)
The defendant in Frahs was charged with two counts of second degree robbery
and one felony count of throwing a substance at a motor vehicle with intent to cause
injury, with a prior serious felony enhancement. (Frahs, supra, 9 Cal.5th at p. 625.) The
defendant testified at trial about suffering hallucinations, numerous hospitalizations, and
that a conservator had once been appointed to care for him. The defendant also testified
he stopped taking his prescribed medication before the charged offenses and experienced
severe hallucinations and delusions at the time. (Ibid.) A clinical and forensic
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psychologist testified on the defendant’s behalf, stating that the defendant had been
previously diagnosed with schizoaffective disorder, described the defendant as “very ill
and unstable,” and that he suffered a psychotic episode and was not in touch with reality
at the time of the offenses. (Id. at p. 625.) After a jury trial, the defendant was convicted
of two counts of robbery and sentenced to nine years in prison. (Id. at pp. 625–626.)
Frahs explained that section 1001.36 was enacted after the defendant was
convicted and sentenced, and while his appeal was pending. (Frahs, supra, 9 Cal.5th at
p. 626.) Frahs held the inference of retroactivity in In re Estrada (1965) 63 Cal.2d 740applies to section 1001.36 so that defendants with qualifying mental disorders whose
cases are not yet final are entitled to limited remand for the trial court to determine
whether they are eligible for mental health diversion. (Frahs, supra, at pp. 624–625.)
Frahs held “the ameliorative nature of the diversion program places it squarely within the
spirit of the Estrada rule,” and section 1001.36 applies retroactively to all cases not yet
final on appeal. (Frahs, supra, 9 Cal.5th at pp. 631–637.)
In reaching this conclusion, Frahs declined to “precisely define ‘until
adjudication,’ as used in section 1001.36, subdivision (c)” (Frahs, supra, 9 Cal.5th at
p. 633, fn. 3), but rejected the People’s argument that applying the statute retroactively
“to cases after adjudication would risk potentially ‘undermining the legitimacy’ of a
jury’s verdict,” particularly if the defendant testified before the jury and was still found
guilty. (Id. at p. 636.) “But even if we were to assume some such overlap in a subset of
the cases to which the diversion statute may apply (the statute does not define the term
‘significant factor,’ and we have no occasion here to do so), the more fundamental fact is
that it would not provide a clear indication that the statute was not intended to apply
retroactively. The Legislature could well have intended to allow judges to decide under
the statute whether a defendant’s mental disorder was a ‘significant factor in the
commission of the charged offense’ [citation] even after a verdict in which a mental
health defense had been presented but rejected by the trier of fact.” (Ibid.)
9.
Frahs next turned to the potential remedy and held a limited remand was
appropriate. (Frahs, supra, 9 Cal.5th at p. 637.) In doing so, Frahs rejected the People’s
argument that the defendant had to demonstrate that he satisfied all six factors of
statutory eligibility before an appellate court could remand for a hearing under section
1001.36. (Frahs, at pp. 637–638.) Frahs held that “imposing such a high bar in the
posture of proceedings such as these would be unduly onerous and impractical. When, as
here, a defendant was tried and convicted before section 1001.36 became effective, the
record on appeal is unlikely to include information pertaining to several eligibility
factors ….” (Id. at p. 638.)
Frahs concluded that “a conditional limited remand for the trial court to conduct a
mental health diversion eligibility hearing is warranted when, as here, the record
affirmatively discloses that the defendant appears to meet at least the first threshold
eligibility requirement for mental health diversion – the defendant suffers from a
qualifying mental disorder [citation].” (Frahs, supra, 9 Cal.5th at p. 640.)
Subsequent Briefing
In light of Frahs, we requested additional briefing from the parties on its impact to
the facts of this case. Defendant argues that based on Frahs, section 1001.36 applies
retroactively to his case since the statute was enacted after his plea hearing, and his case
is not yet final on appeal. Defendant further argues the record shows he met the
threshold requirement to obtain remand since he submitted a list of medications to the
trial court that showed he suffered from mental health disorders, and he was housed in a
prison facility that provided mental health treatment.
In response, the People assert that Frahs has not changed the argument that
defendant forfeited any possible claim under section 1001.36 since he had the ability to
request relief under the statute for several months but failed to do so. The People further
argue that defendant’s statements at the hearing on his motion to withdraw his plea were
10.
insufficient to satisfy even a preliminary showing under section 1001.36. The People
also argue that ineffective assistance is not a cognizable claim on this record.
E. Analysis
We find that defendant has forfeited review of his claims under section 1001.36.
Defendant was alleged to have committed the charged offenses on or about February 24,
2017, when he was a state prison inmate. On May 31, 2018, over one year later,
defendant pleaded no contest pursuant to the negotiated disposition.
Section 1001.36 was enacted about one month after defendant entered his no
contest plea. However, defendant had nearly four additional months to raise the issue of
diversion but failed to do so. Just a month after entering his plea, defendant advised the
court that he wanted to withdraw his plea but did not state the reasons. On July 2, 2018,
the court temporarily relieved the deputy public defender and appointed another attorney
to investigate a possible motion to withdraw his plea.
On September 26, 2018, the newly appointed attorney stated he had reviewed the
entirety of the record and concluded that he could not make a motion to withdraw in good
faith. The court denied defendant’s motion to withdraw the plea, relieved the second
counsel, and reappointed the deputy public defender. At that point, defendant advised the
court that he was receiving medication from the mental health program in the prison
when he entered the plea in this case, he did not understand the plea proceedings, and he
just did what his attorney told him to do. Defendant never said he was on medication,
receiving mental health treatment, or suffering from a mental health condition when he
committed the charged offense in February 2017.
On October 3, 2018, the court convened another hearing on defendant’s motion to
withdraw his plea. Defense counsel again said there was no legal basis to withdraw the
plea. Defendant again addressed the court and repeated that he was on medication and a
patient in the prison’s mental health division when he entered his plea, presented a list of
his medication to the court, and said he did not understand what was going on at the plea
11.
hearing. However, he did not say that he was suffering from a mental health condition or
on medication when he committed the charged offense. The court denied defendant’s
motion and found that he appeared cognizant and aware of the circumstances at the plea
hearing, and his claim was not credible.
Defendant thus had nearly four months to raise this issue and had the benefit of a
newly appointed attorney to determine whether there were grounds for a motion to
withdraw his plea, based on his claim that he was a patient in the prison’s mental health
division and he was on medication and did not understand what was going on at the plea
hearing. Both attorneys were aware of his alleged mental health issues and, by October
2018, one or both of them should have been aware of the enactment of section 1001.36 in
June 2018. However, both attorneys advised the court there was no basis to file a motion
to withdraw in good faith, and the court denied the motion and found defendant’s claims
were not credible based on its observations of his conduct and demeanor at the plea
hearing.
In the alternative, defendant argues his attorney was prejudicially ineffective for
failing to request diversion after section 1001.36 was enacted. “A criminal defendant’s
federal and state constitutional rights to counsel [citations] includes the right to effective
legal assistance. When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
12.
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009; People v.
Williams (1997) 16 Cal.4th 153, 214–215; People v. Gray (2005) 37 Cal.4th 168, 207.)
“In determining whether the significance of a change in the law excuses counsel’s
failure to object at trial, we consider the ‘state of the law as it would have appeared to
competent and knowledgeable counsel at the time of trial.’ [Citation.]” (People v. Black
(2007) 41 Cal.4th 799, 811, overruled on other grounds by Cunningham v. California
(2007) 549 U.S. 270.) Section 1001.36 had been enacted four months prior to
defendant’s sentencing hearing. During that four-month period, the court held several
hearings on defendant’s motion to withdraw his plea. Defendant had the benefit of two
attorneys who could have raised the issue and requested diversion under the newly
enacted statute, with one attorney specifically appointed to determine whether there were
grounds to file a motion to withdraw his plea. Nevertheless, neither attorney argued
defendant should be allowed to withdraw his plea because section 1001.36 was enacted a
month after he pleaded no contest, and the record does not contain evidence that
defendant suffered from a diagnosed mental health disorder when he committed the
charged offense in February 2017. The record indicates satisfactory reasons why both of
defendant’s attorneys did not rely on the newly enacted diversion statute during the four-
month period when the court considered defendant’s motion to withdraw his
plea - because there was no evidence he was suffering from a mental health condition
when he committed the instant offense.
“An appeal is ‘limited to the four corners of the [underlying] record on appeal”
(People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1), and defendant’s ineffective
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assistance claim would be more appropriately pursued in a habeas corpus proceeding.
(People v. Mai, supra, 57 Cal.4th at p. 1009.)
II. The Restitution Fine, Fees, and Assessments
Defendant asserts the court improperly ordered him to pay a restitution fine and
other fees in violation of his due process rights because it failed to determine if he had the
ability to pay these amounts, as set forth in Dueñas and People v. Castellano (2019) 33
Cal.App.5th 485. Defendant argues the restitution fine must be stayed and the fees
reversed, or the matter must be remanded for an ability to pay hearing.
Defendant’s due process argument is based on Dueñas, which was decided after
his sentencing hearing and while this appeal was pending. Dueñas held that “due process
of law requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay” before it imposes any fines or fees. (Dueñas, supra,
30 Cal.App.5th at pp. 1164, 1167.)4
As we explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we
believe Dueñas was wrongly decided and an Eighth Amendment analysis is more
appropriate to determine whether restitution fines, fees, and assessments in a particular
case are grossly disproportionate and thus excessive. (Aviles, pp. 1068–1072.) Under
that standard, the fines and fees imposed in this case are not grossly disproportionate to
defendant’s level of culpability and the harm he inflicted, and thus not excessive under
the Eighth Amendment. (Aviles, at p. 1072.)
Next, to the extent Dueñas applies to this case, defendant did not forfeit review of
the issue. Section 1202.4, subdivisions (c) and (d) permit a party to raise an ability to pay
objection when the court imposes a restitution fine above the statutory minimum. The
4The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
14.
court imposed the statutory minimum restitution fine of $300, and defendant lacked the
statutory ability to raise an ability to pay objection. In addition, any objections to the
assessments imposed under section 1465.8 and Government Code section 70373 would
not have been futile. (See, e.g., People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154;
Aviles, supra, 39 Cal.App.5th at p. 1074.)
While defendant did not forfeit review of his due process argument, even if we
agreed with Dueñas and Castellano, we would still reject defendant’s constitutional
claims and find any error arising from the court’s failure to make an ability to pay finding
was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031; People v. Johnson (2019)
35 Cal.App.5th 134, 139–140.)
“ ‘ “Ability to pay does not necessarily require existing employment
or cash on hand.” [Citation.] “[I]n determining whether a defendant has
the ability to pay a restitution fine, the court is not limited to considering a
defendant’s present ability but may consider a defendant’s ability to pay in
the future.” [Citation.] This include[s] the defendant’s ability to obtain
prison wages and to earn money after his release from custody. [Citation.]’
[Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the
amount of the fine and fees imposed in this case from probable future wages, including
prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31
Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is
nothing in the record to show that defendant would be unable to satisfy the fines and fees
imposed by the court while serving his prison term, even if he fails to obtain a prison job.
While it may take defendant time to pay the amounts imposed in this case, that
circumstance does not support his inability to make payments on these amounts from
either prison wages or monetary gifts from family and friends during his prison sentence.
(See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1056–1057; People v. Lewis (2009) 46
Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
15.
We conclude that based on the record before this court, defendant has the ability to
pay the restitution fine and fees that were imposed.
DISPOSITION
The judgment is affirmed.
16.