People v. Bowermaster CA2/6

Filed 2/10/14 P. v. Bowermaster 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B250351
(Super. Ct. No. M465853)
Plaintiff and Respondent, (San Luis Obispo County)
v.
CHARLES EUGENE BOWERMASTER,
Defendant and Appellant.
Charles Eugene Bowermaster appeals the judgment entered after he pled no
contest to driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)).
Appellant also admitted allegations that he had suffered three prior convictions for
driving under the influence (Veh. Code, § 23152, subd. (b)) and two prior strike
convictions (Pen. Code,1 §§ 667, subds. (d), (e), 1170.12, subds. (b), (c)), and had served
four prior prison terms (§ 667.5, subd. (b)).
Appellant was initially deemed incompetent to stand trial. On December
23, 2011, he was committed to Atascadero State Hospital (ASH) for treatment pursuant
1 All further statutory references are to the Penal Code.
to section 1370, subdivision (a)(1)(B)(i).2 On June 14, 2012, ASH's medical director
issued a certification of appellant's mental competency in accordance with section 1372.
After appellant waived his rights to a preliminary hearing and trial and pled no contest, 3
the trial court sentenced him to five years in state prison and awarded him 1,034 days
presentence custody credit under section 4019. Appellant was also ordered to pay a
$1,000 restitution fine (§ 1202.4, subd. (b)) and other various statutory fines and fees.
We appointed counsel to represent appellant in this appeal. After
examining the record, counsel filed an opening brief raising no issues. On December 12,
2013, we advised appellant that he had 30 days to personally submit any contentions he
wished us to consider. In a timely response, appellant contends he is entitled to
presentence custody credit in accordance with People v. Bryant (2009) 174 Cal. App. 4th
175 (Bryant). He also claims the court erred in ordering him to pay a $1,000 restitution
fine. Although defense counsel did not object to the fine, appellant claims that counsel
was about to do so when the court "cut him off and made [appellant] set [sic] down and
shut up."
Appellant fails to demonstrate either error of which he complains. The
defendant in Bryant, like appellant, was initially declared incompetent to stand trial and
was committed for treatment to restore his competency. The Court of Appeal concluded
the defendant was entitled to section 4019 credits as of the date state hospital staff
prepared and served a report stating that his competency had been restored, rather than
the subsequent date the medical director's designee executed and served a section 1372
2 Section 1370, subdivision (a)(1)(B)(i) states: "If the defendant is found mentally
incompetent, the trial or judgment shall be suspended until the person becomes mentally
competent. [¶] (i) In the meantime, the court shall order that the mentally incompetent
defendant be delivered by the sheriff to a state hospital for the care and treatment of the
mentally disordered, or to any other available public or private treatment facility, . . .
approved by the community program director that will promote the defendant's speedy
restoration to mental competence, or placed on outpatient status as specified in Section
1600."
3 Although we ordinarily derive a statement of facts from the probation report
under these circumstances, no such facts are included in that report or elsewhere in the
record.
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certification of the defendant's competence.4 (Bryant, supra, 174 Cal.App.4th at pp. 182-
183.) The court stated: "[O]ur opinion should not be read as holding that the very instant
competency is restored, the right to conduct credits accrues. The Legislature has
provided for an orderly process in sections 1371 and 1372 for evaluating patients and
returning them to court when their competence is regained. But when the uncontradicted
evidence demonstrates the accused's competency was unquestionably regained as of a
date certain, as occurred here on May 21, 2007, the defendant is entitled to section 4019
conduct credits even though the section 1372, subdivision (a)(1) certification has not
been mailed to the trial court." (Id. at p. 184.)
Appellant was awarded section 4019 credits as of June 14, 2012, which is
the date the section 1372 certification of his mental competency was executed by ASH's
Medical Director, Dr. Thomas G. Cahill, and Forensic Services Director David K.
Fennel, M.D. Appellant asserts that pursuant to Bryant, he should have been awarded
credits as of June 8, 2012, which he characterizes as the date ASH staff prepared its
report stating that appellant's competency had been restored. Although the record reflects
that the report was dated June 8, 2012, Dr. Fennel did not sign off on the report until June
15, 2012, the day after he and Dr. Cahill executed their section 1372 certification of
appellant's competency. Because the record demonstrates that appellant was not
"unanimously found by [all] staff members to be restored to competency" until June 14,
2012, section 4019 credits were correctly awarded as of that date. (Bryant, supra, 174
Cal.App.4th at p. 184.)
4 The first report was prepared and served in accordance with section 1370,
subdivision (b)(1), which states in pertinent part: "Within 90 days of a commitment
made pursuant to subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a written report to the
court . . . concerning the defendant's progress toward recovery of mental competence."
The certification of the defendant's mental competence was executed and served pursuant
to section 1372, subdivision (a)(1), which states in pertinent part that "[i]f the medical
director of the state hospital or other facility to which the defendant is committed . . .
determines that the defendant has regained mental competence, the director shall
immediately certify that fact to the court by filing a certificate of restoration with the
court by certified mail, return receipt requested."
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Appellant also fails to demonstrate the court erred in ordering him to pay a
$1,000 victim restitution fine without considering his inability to pay. Even assuming
that appellant's statement, "I'm not going to have any money to pay anything," is
sufficient to preserve the claim or that the court otherwise prevented appellant or his
attorney from objecting to the fine, appellant "points to no evidence in the record
supporting his inability to pay, beyond the bare fact of his impending incarceration. Nor
does he identify anything in the record indicating the trial court breached its duty to
consider his ability to pay; as the trial court was not obligated to make express findings
concerning his 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. Gamache (2010) 48 Cal. 4th 347, 409.)
We have reviewed the entire record and are satisfied that appellant's
attorney has fully complied with his responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal. 4th 106, 126; People v. Wende (1979) 25 Cal. 3d 436,
443.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
California Appellate Project, Jonathan B. Steiner, Richard B. Lennon,
under appointment by the Court of Appeal; Charles Bowermaster, in pro. per., for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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