IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PATRICIA VASQUEZ, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Rushing, P.J.
P. v. Vasquez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC821880)
Defendant Patricia Vasquez appeals a judgment entered following a jury trial during which she was found guilty of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), and grand theft (§§ 484, 487, subd. (a)).*fn1 On appeal, defendant asserts the trial court erred by (1)imposing probation conditions without a knowledge requirement; (2) ordering defendant to pay probation supervision costs without a hearing to determine her ability to pay; and (3) failing to award defendant additional conduct credits pursuant to section 4019.
STATEMENT OF THE CASE*fn2
Defendant was charged by information in 2009 with second degree burglary (§§ 459, 460, subd. (b)), and grand theft (§§ 484, 487, subd. (a)). On June 11, 2009, defendant was convicted of all the charges.
In September 2009, the trial court suspended imposition of sentence and placed defendant on probation that included numerous terms and conditions. The court also ordered defendant to pay restitution in the amount of $1,369, and probation costs of $110. Defendant filed a timely notice of appeal.
Defendant asserts the trial court erred in ordering vague probation conditions, requiring her to pay probation fees, and failing to award her sufficient conduct credits under section 4019.
Probation Conditions Without Knowledge Requirement
As conditions of probation, the court ordered that defendant "shall not possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale," and that she shall not "own, possess, or have in her care or custody or control any firearm or ammunition for the rest of [her] life."
Defendant asserts, and the respondent concedes, that the conditions as stated above are unconstitutionally vague and overbroad, because they do not require that her possession or consumption be knowing.
A specific knowledge requirement is critical to the validity of a probation condition. The Supreme Court in In re Sheena K. (2007) 40 Cal.4th 875, considered a probation condition forbidding association with " 'anyone disapproved of by probation.' " (Id. at p. 878.) The court concluded that "in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague" because "the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892, fn. omitted.) It further agreed that "modification to impose an explicit knowledge requirement [was] necessary to render the condition constitutional." (Id. at p. 892.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated' . . . ." (Id. at p. 890.)
We therefore order the conditions modified to include a knowledge requirement as follows: Defendant shall not knowingly possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale, and she shall not knowingly own, possess, or have in her care or custody or control any firearm or ammunition for the period of probation.
Order to Pay Probation Costs
Defendant asserts the court erred in ordering her to pay probation supervision costs, because it did not hold a hearing on her ability to pay those costs, and there was insufficient evidence that she had the ability to pay the costs.
Here, the court ordered defendant to pay the following fees separate from her probation conditions: a presentence investigation fee not to exceed $450, and probation supervision costs not to exceed $110 per month, pursuant to section 1203.1.
Initially, we address respondent's argument that defendant waived the issue of the probation costs because she did not object in the trial court. We find defendant did not forfeit her claim due to failure to object at the time the court suspended imposition of sentence. Our review of the record shows that defendant did not have an opportunity to object to the imposition of a probation supervision fee of $110 per month because no such order was ever made. There was no finding of defendant's ability to pay, or a determination of a payment amount of $110 per month, were ever made by the trial court or a probation officer or his or her authorized representative. Thus, at no point did defendant have the opportunity to object to a determination that she had the ability to pay a probation supervision fee of $110 per month. The issue was not waived by defendant's failure to object in the trial court.
Section 1203.1b, subdivision (a), requires the court to inquire into a defendant's ability to pay the reasonable costs of probation supervision: "[T]he probation officer or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . . The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer . . . shall determine the amount of payment and the manner in which the payments shall be made to the county, based on the defendant's ability to pay. . . . The defendant must waive the right to determination by the court of his or her ability to pay and the payment by a knowing and intelligent waiver."
If the defendant does not waive the right to a court determination of his or her ability to pay probation supervision costs and the payment amount, section 1203.1b, subdivision (b), provides for a hearing in the trial court: "When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative."
The term " 'ability to pay' " is defined in section 1203.1b, subdivision (e), as "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the preplea or presentence report, . . . and probation supervision . . . and shall include, but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible financial position. . . . [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs."
Where the record does not indicate that the probation officer or the trial court made a determination of the defendant's ability to pay probation supervision costs or that the defendant was informed of the right to a court hearing on the ability to pay, it has been held that a remand for the purpose of compliance with section 1203.1b is warranted. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1067-1068.) However, a finding of ability to pay probation supervision costs may be made by the trial court as part of the sentencing process, without the necessity of a separate, formal hearing. (People v. Phillips (1994) 25 Cal.App.4th 62, 70.) Thus, a finding of ability to pay need not be express, but may be implied through the content and conduct of other trial court hearings. (Id. at pp. 71-72.)
Here, at the hearing during which the trial court suspended imposition of sentence, the court ordered defendant to pay "[a] presentence investigation fee not to exceed $450, imposed pursuant to section 1203.1(b) . . . , and a probation supervision fee not to exceed $110 a month pursuant to section 1203.1(b)." However, there is nothing in the record to show that a determination of defendant's ability to pay the presentence investigation fee or the probation supervision costs was made by the department of revenue, or that the trial court made any express or implied findings regarding defendant's ability to pay, or that defendant was informed of her right to a court hearing on her ability to pay. Therefore, it appears that a remand to the trial court for the purpose of a determination of defendant's ability to pay probation supervision costs as provided by section 1203.1b, is appropriate in this case.
Respondent asserts that although there was no express finding of her ability to pay the probation costs, there is substantial evidence in the record to imply such a finding. According to the respondent, evidence of defendant's ability to pay includes a representation made by defendant's friend in a letter to the court that that defendant would have a place to live upon release from jail, and that he would train her to be a real estate appraiser. In addition, defendant told the court at the hearing that she planned to live with her mother, complete the next phase of a drug treatment program and complete the required classes to receive a high school diploma. Finally, respondent asserts the fact that defendant's counsel stipulated to a restitution order of $1,369 implies defendant's ability to pay the probation costs ordered.
However, we do not find the contents of defendant's friend's letter, the fact that defendant stipulated to the restitution amount, or defendant's representations to the court that she wished to finish high school are sufficient evidence of defendant's ability to pay the probation costs. Such statements do not constitute findings with respect to the factors expressly set forth in section 1203.1b, subdivision (e), for a determination of a defendant's ability to pay probation costs. For these reasons, we believe that this case should be remanded to the trial court for a determination of defendant's ability to pay probation costs and the amount of the costs, if any, as provided by section 1203.1b.
Conduct Credits Under Section 4019
Defendant argues she is entitled to additional conduct credits due to the retroactive application of the amendment to section 4019.
Section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior during detention (§ 4019, subd. (c)(1)). Such credits are collectively referred to as " '[c]onduct credits.' " (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The recently enacted Senate Bill No. 18 (2009-2010 3d Ex. Sess.) amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) The formula in place for calculating credits under section 4019 in September 2009 when the court suspended imposition of sentence and placed defendant on probation was that a defendant could accrue conduct credit of two days for every four days of actual presentence custody (former § 4019, subds. (b), (c)); under the new formula provided in Senate Bill No. 18, a qualifying defendant may accrue conduct credit of four days for every four days of presentence custody (§ 4019, subds. (b)(1), (c)(1)).
The issue regarding the retroactive application of the amendment to section 4019 has divided the appellate courts and is presently pending before the California Supreme Court. The First, Second, and Third District Courts of Appeal have held that the amendment to section 4019 applies retroactively. ( People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049
, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) This court, along with the Fourth and Fifth Districts, held that the amendment applies prospectively. (People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
We hold to our prior opinion that section 4019 applies prospectively. Section 3 provides that no part of the Penal Code is "retroactive, unless expressly so declared." Section 3 thus reflects the general rule that legislative provisions are presumed to operate prospectively. " 'It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]' [Citations.] 'We may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. [Citation.]' [Citation .] Nonetheless, 'in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.' " (People v. Whaley (2008) 160 Cal.App.4th 779, 793-794.)
In addition, we are not convinced by the argument that the amendment to section 4019 should be applied retroactively because the Legislature enacted Senate Bill No. 18 during California's fiscal emergency with the intention of reducing the prison population and the associated drain on public resources. (Sen. Bill No. 18 (2009-2010 3d Ex.Sess.) § 62.) Although retroactive application of the amendment would likely result in greater savings to the state, because more inmates would be eligible to have their prison terms reduced, prospective application of the amendment also results in savings.
The fact remains that the primary purpose of the presentence credit scheme set forth in section 4019 is the encouragement of " 'minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges.' " (People v. Brown (2004) 33 Cal.4th 382, 405.) Nothing in the amendment changes that fundamental purpose, and a defendant who was sentenced prior to the effective date of the amendment to section 4019 cannot be retroactively encouraged to behave well during presentence custody. Accordingly, we find that the Legislature implicitly intended that the amendment to section 4019 to apply prospectively in furtherance of section 4019's primary purpose.
Defendant's reliance on In re Estrada (1965) 63 Cal.2d 740, is misplaced. In Estrada, the California Supreme Court stated, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) However, the rule in Estrada is not applicable in the present case because the amendment to section 4019 does not necessarily lessen a defendant's punishment. As we have discussed, section 4019 allows a defendant to earn additional credit based on his or her conduct in pretrial detention, whereas section 2900.5 provides that a defendant is entitled to additional custody credit simply for being in presentence custody. Because the purpose of section 4019 is to encourage good behavior by dangling the carrot of additional credits, it does not fall under the rubric of Estrada. The lessening of punishment, both under the previous and amended versions of section 4019, is incidental and ad hoc, in that it only applies to those inmates who behave while in custody and who otherwise qualify.
Defendant asserts the equal protection argument clause compels the retroactive application of section 4019, relying on In re Kapperman (1974) 11 Cal.3d 542 (Kapperman) and People v. Sage (1980) 26 Cal.3d 498 (Sage). We find neither Kapperman nor Sage to be applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
Sage is similarly inapposite, because it involved a prior version of section 4019 which allowed presentence conduct credits to misdemeanants, but not felons. (Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither "a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid., fn. omitted.) The purported equal protection violation at issue here is temporal, rather than based on the defendant's status as a misdemeanant or felon.
We conclude therefore, that the amendment to section 4019 operates prospectively, and defendant is not entitled to the benefit of additional conduct credits under the new formula.
The judgment is modified such that defendant's probation conditions will include an express knowledge requirement as follows: Defendant shall not knowingly possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale, and she shall not knowingly own, possess, or have in her care or custody or control any firearm or ammunition for the period of probation.
In addition, the matter is remanded for the trial court for a determination of defendant's ability to pay probation costs and the amount of the probation costs, if any, as provided by section 1203.1b.
As so modified, the judgment is affirmed.
WE CONCUR: PREMO, J. ELIA, J.