P. v. Banales CA4/2

Filed 4/19/13 P. v. Banales CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061472
Plaintiff and Respondent,
v. (Super. Ct. No. JCF27831)
MARIO GERMAN BANALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,
Jr., Judge. Affirmed as modified.
A jury convicted defendant Mario German Banales of unlawful driving or taking
of a vehicle (Veh. Code, § 10851, subd. (a); count 1) and of receiving a stolen motor
vehicle (Pen.1 Code, § 496d, subd. (a); count 2). In a bifurcated proceeding, the trial
court found Banales had two prison priors within the meaning of section 667.5,
1 All further statutory references are to the Penal Code.
subdivision (b), struck one of those priors and sentenced Banales to state prison for four
years.
Banales raises three issues in this proceeding. First, he contends the sentencing
court's order requiring him to pay $240 in restitution pursuant to section 1202.4,
subdivision (b)(1) violated the constitutional prohibition against the ex post facto
application of a law because the statutory minimum at the time he committed the instant
offenses was $200 and because the court allegedly intended to impose the statutory
minimum. Second, he contends the court erred in imposing an order preventing him from
entering the premises of the Brawley Elementary School District (district) because he was
denied probation. Finally, he contends the court erred in ordering him to pay $100 in
court-appointed attorney fees pursuant to section 987.8.
As we explain, we agree with Banales's contention that the order to stay away
from the premises of the district be stricken, inasmuch as Banales was denied probation.
In all other respects, we affirm Banales's judgment of conviction.
BRIEF BACKGROUND
The relevant facts are not in dispute. A pickup truck belonging to the district was
reported missing in late September 2011. A few days later, a district employee
recognized the truck parked near a school.
The district's dispatcher notified district director of maintenance Marcelino
Felician about the location of the stolen truck. Felician found the truck and called police.
As Felician waited for police to arrive, Felician saw a male later identified as Banales get
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into the driver's side of the truck and drive away with a male passenger. Before driving
away, Felician saw the male driver put a backpack in the bed of the truck. Felician
followed behind the truck until it stopped and saw both males exit the truck.
When police contacted Banales, he had the backpack strapped to his back.
Banales told police the backpack belonged to him and admitted he was on parole. In a
subsequent search of the backpack, police found inside an insurance card that matched
the make, model and VIN number of the truck and some latex gloves. Police observed
that the driver side window of the truck was broken, and the truck's ignition was modified
to fit a screwdriver. Police found a flathead screwdriver on the passenger side floor of
the truck.
DISCUSSION
A. Restitution Fine
The record shows Banales committed the instant offenses in September 2011. At
that time, section 1202.4, subdivision (b)(1) provided, "[t]he 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)." (Stats. 2005, ch. 240, § 10, italics added.) Section 1202.4, subdivision (b),
as amended in 2011 and effective January 1, 2012, provides for a minimum $240 fine.
(See Stats. 2011, ch. 358.) The statutory maximum did not change, however. (See
§ 1202.4, subd. (b)(1).)
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Banales contends the imposition of the $240 fine violated the constitutional
prohibition against the ex post facto application of a law because the court intended to
impose the statutory minimum and therefore erroneously imposed the minimum
applicable in 2012 (i.e., $240), rather than the minimum that governed crimes committed
before then (i.e., $200). We are not persuaded.
For one thing, there is no ex post facto application of section 1202.4, subdivision
(b)(1) because the court had discretion to impose a restitution fine up to $10,000 and thus
Banales was not subject to increased punishment when the sentencing court ordered him
to pay $240. For another thing, the court is presumed to have followed the correct law,
even if it did not explicitly state the law it was applying. (Wilson v. Sunshine Meat &
Liquor Co. (1983) 34 Cal. 3d 554, 562.) An appellant has the burden of affirmatively
showing error, and we cannot find such error on the basis of mere speculation.
Indeed, the sentencing court here made no reference to applying the statutory
minimum for the restitution fine, and there is nothing in the record to support such a
finding. The sentencing court clearly was within its discretion when it ordered Banales to
pay $40 more than the statutory minimum applicable at the time Banales committed the
offenses. As such, we conclude the court did not abuse its discretion in ordering Banales
to pay restitution of $240.2
2 In light of our decision on the merits, we deem it unnecessary to decide whether
Banales forfeited this claim by failing to raise it below. In any event, we note the issue of
forfeiture in an analogous situation (i.e., involving a criminal justice administrative fee) is
currently pending before our Supreme Court. (See People v. McCullough, review
granted June 29, 2011, S192513.)
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B. Stay Away Order
Banales next contends the court erred when it imposed the order to stay away from
the district because Banales was denied probation. The People concede this issue and
thus we will order this condition stricken.
C. Payment of Fees for Court-Appointed Attorney
Finally, Banales contends he was denied due process of law based on the failure of
the sentencing court to inform him of his statutory right to a hearing pursuant to section
987.8, subdivision (b)3 on the issue whether he had the ability to pay all or a part of the
costs for court-appointed counsel.
In a case similar to ours, the defendant in People v. Phillips (1994) 25 Cal. App. 4th
62 (Phillips) challenged the order requiring him to pay $150 toward the costs of his
court-appointed counsel because, among other things, the court had failed to give him
notice of his right to a section 987.8 hearing, and the defendant had not expected "the
court to take up the matter of legal fees during the sentencing hearing." (Phillips, at pp.
73-74.)
3 Section 987.8, subdivision (b) states: "In any case in which a defendant is
provided legal assistance, either through the public defender or private counsel appointed
by the court, upon conclusion of the criminal proceedings in the trial court, or upon the
withdrawal of the public defender or appointed private counsel, the court may, after
notice and a hearing, make a determination of the present ability of the defendant to pay
all or a portion of the cost thereof. The court may, in its discretion, hold one such
additional hearing within six months of the conclusion of the criminal proceedings. The
court may, in its discretion, order the defendant to appear before a county officer
designated by the court to make an inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided."
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In rejecting this argument, the court in Phillips held that the probation report's
reference and recommendation regarding payment of attorney fees for court-appointed
counsel "constituted notice reasonably calculated, under all of the circumstances, to
apprise defendant that the matter would be taken up in the context of the sentencing
hearing." (Phillips, supra, 25 Cal.App.4th at p. 74.) The court in Phillips saw "no reason
why such a recommendation should not be viewed as placing a defendant on notice that
he or she should be prepared to proceed with the ability-to-pay hearing at [the] time of
sentencing." (Id. at pp. 74-75.)
We find the reasoning of Phillips persuasive. Like the defendant there, in our case
Banales's probation report (which is part of the record) recommended that he pay $100
toward the services of his court-appointed counsel. Although not the preferred practice
(see Phillips, supra, 25 Cal.App.4th at p. 74), we conclude the reference to attorney fees
in the probation report provided Banales sufficient notice that the issue of payment of
attorney fees could come up in the sentencing hearing and such notice satisfied due
process.
Moreover, the court in Phillips noted the conduct of defense counsel at the
sentencing hearing supported its conclusion that the defendant was afforded sufficient
notice to be prepared for a section 987.8 hearing: "Counsel did not offer any objection to
the court's order for reimbursement on grounds of notice, lack of preparation, or lack of
an opportunity to present evidence. The absence of any such objection indicates that
defendant was not surprised by the court's consideration of his financial status and the
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subsequent order for reimbursement. [Citation.]" (Phillips, supra, 25 Cal.App.4th at p.
75.) Similarly, in the instant case the record shows Banales's defense counsel neither
objected to the decision of the court to take up the attorney fees issue at sentencing nor to
the $100 imposed by the court for reimbursement of such fees.
The court in Phillips also rejected the argument of the defendant that the section
987.8 hearing must be separate: "[S]ection 987.8 does not contain any language either
mandating a separate hearing or prohibiting consideration of reimbursement for legal
costs as part of the sentencing process. In addition, as with probation costs, a
construction of section 987.8 which permits the court to take up the matter of legal costs
at time of sentencing, is also consistent with the general purpose of the statute at issue,
i.e., to conserve the public fisc. In sum, based on the language of the statute and sound
policy considerations, we can perceive no valid basis for construing the statute as
requiring the expenditure of additional public funds by requiring all of the interested
parties to reconvene before the court at a later date. While this is clearly an option under
the statute, section 987.8 by no means compels such a procedure." (Phillips, supra, 25
Cal.App.4th at p. 76.) Again, we find Phillips persuasive on this issue and conclude
Banales was not entitled to a separate section 987.8 hearing regarding payment of
attorney fees.
Finally, we separately reject Banales's contention he was denied due process of
law in connection with this issue because the record shows that during the sentencing
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hearing he consented to pay $100 toward the costs of his court-appointed counsel, as
demonstrated by the following colloquy:
"[THE COURT:] Mr. Banales, the Court had advised you at your arraignment that
when your case was over, you may be asked to reimburse the county for the costs of the
Court appointed counsel. The recommendation is $100 for the cost of the Court
appointed counsel. . . . There was quite a bit of time and preparation for this case. That
amount is a tiny fraction of the amount of time that was spent. You agree to pay that
amount?
"Mr. Banales: Pay what?
"THE COURT: The amount for attorney's fees, $100?
"Mr. Banales: All right.
"THE COURT: All right. That will be the order."
We also conclude Banales's consent to pay $100 is sufficient evidence to support
the (implied) finding of the trial court that Banales had the resources to pay a small
portion of the costs of his court-appointed counsel.4
DISPOSITION
The order of the court requiring Banales to stay away from the district's premises
is stricken. As modified, the judgment of conviction is affirmed. The trial court is
directed to prepare an amended abstract of judgment reflecting the modified judgment
4 In addition, we note from the probation report that Banales admitted he was using
$20 worth of methamphetamine per day, which further supports the (implied) finding of
the court that Banales had the ability to pay $100 toward the costs of his court-appointed
counsel.
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and to forward a certified copy thereof to the California Department of Corrections and
Rehabilitation.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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