People v. Israel CA2/3

Filed 8/26/16 P. v. Israel CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE, B268629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA081122)
v.
DAVID ISRAEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark E. Windham, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
Defendant and appellant, David Israel, appeals a decision by the trial court after
this court remanded for resentencing. Israel was convicted of lewd act on a child
under 14, with recidivist sexual offender and prior serious felony conviction findings
(Pen. Code, §§ 288, subd. (a), 667.71, 667, subds. (b)-(i)).1 He was sentenced to state
prison for a term of 55 years to life. In People v. Israel (B252966), an unpublished
opinion filed on February 4, 2015 (Edmon, P. J. with Kitching & Aldrich, JJ.), we
affirmed Israel’s conviction, vacated one of his sentences, and remanded for resentencing
regarding the imposition of certain fines and assessments.
The judgment entered following resentencing upon remand is affirmed.
BACKGROUND
While riding a public bus, Israel pushed himself up against an eight-year-old
passenger who was on a school trip. Israel fondled the girl’s knee, then took out his penis
and began rubbing it on her leg. An adult chaperone intervened. Israel has a long history
of similar sexual behavior on public buses. He was sentenced to state prison for a term of
55 years to life.
On the initial appeal, both Israel and the Attorney General raised sentencing
issues. We agreed with Israel that a child abuse prevention restitution fine imposed
pursuant to section 294 should be stricken because the offense for which he was
convicted, child molesting under section 288, is not one of the offenses enumerated in
either subdivision (a) or subdivision (b) of section 294.2 We also concluded the trial
court erred by not imposing appropriate penalties and surcharges in connection with fines
imposed under sections 290.3 and 288, subdivision (e). We then remanded the case for
the trial court to determine Israel’s ability to pay the penalties and surcharges that should
have been imposed under sections 290.3 and 288, subdivision (e).
1
All further references are to the Penal Code unless otherwise specified.
2
Section 294 provides for special restitution fines where a defendant is convicted of
violating sections 273a, 273d, 288.5, 311.2, 311.3, or 647.6, or for violating sections 261,
264.1, 285, 286, 288a, or 289 where the victim is a minor under the age of 14.
2
Subsequently, during a hearing on September 28, 2015, at which Israel was
present, the trial court determined that he did have the ability to pay the $11,150 in fines,
penalty assessments and surcharges that should have been imposed as part of his original
sentence for his child molesting conviction.
We appointed counsel to represent Israel on appeal. After reviewing the record,
counsel filed an opening brief requesting this court to independently review the record
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. By notice filed April 28, 2016,
the clerk of this court advised Israel to submit within 30 days any contentions, grounds of
appeal, or arguments he wished this court to consider. No response has been received to
date.
DISCUSSION
On remand, in addition to the originally imposed $5,000 restitution fine under
section 1202.4, the trial court imposed a $500 fine under section 290.3 (with $1,550
penalty assessments) and a $1,000 fine under section 288, subdivision (e) (with $3,100
penalty assessments) for a total of $11,150. The trial court made a determination that,
although Israel was in prison and had apparently not yet been assigned to a job, it could
be expected that he would get a prison job at some point in the future and out of those
wages he would be able to pay the amounts assessed against him.
In determining a defendant’s ability to pay a fine, “the trial court is not limited to a
consideration of a defendant’s present ability to pay but may consider defendant’s ability
to pay in the future.” (People v. Frye (1994) 21 Cal.App.4th 1483, 1485.) And that
future ability to pay may include prison wages. (See People v. Ramirez (1995)
39 Cal.App.4th 1369, 1377 [“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 his ability to earn wages while in prison.”]; People v. Gentry (1994)
28 Cal.App.4th 1374, 1376-77 [“We believe that it would be unfair to the beneficiaries of
the Restitution Fund to allow defendants to avoid the imposition of restitution fines while
allowing them to retain their prison wages and also earn work-release credits.
Accordingly, we hold that in making an ability to pay determination the court may
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consider a defendant’s future prison wages in their entirety as well as the possibility of
employment upon defendant’s release from prison.”].)
We have examined the entire record and are satisfied appellate counsel has fully
complied with his responsibilities and that no arguable appellate issues exist. (Smith v.
Robbins (2000) 528 U.S. 259, 278 [120 S.Ct. 746]; People v. Wende, supra, 25 Cal.3d at
p. 443.)
DISPOSITION
The judgment entered following resentencing upon remand is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
LAVIN, J.
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