P. v. Hernandez

Filed 9/24/12 P. v. Hernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ANGEL HERNANDEZ,
Defendant and Appellant.
2d Crim. No. B235289
(Super. Ct. No. 2008044775)
(Ventura County)
Jose Angel Hernandez appeals his conviction by plea for assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1))1, making terrorist treats (§ 422), three counts of
resisting an executive officer (§ 69), obstructing an officer (§ 148, subd. (a)), and vandalism
(§ 594, subd. (b)(2)(A)) with two prior strikes (§§ 667, subds. (c) - (e); 1170.12, subds. (a) –
(c)) and a prior serious felony conviction enhancement (§ 667, subd. (a)(1)). The trial court
sentenced appellant to 18 years 4 months state prison and ordered him to pay victim
restitution, $1,200 restitution fines, $1,391.64 to the Victim Compensation & Government
Claims Board (§ 1202.4), and a $1,524 presentence investigation fee.
We strike the $1,524 presentence investigation fee because there is no
evidence to support the finding that appellant has the financial ability to pay the fee.
(§ 1203.1b, subds. (b) & (e).) The judgment, as modified, is affirmed.
The preliminary hearing transcript and probation report reflect that appellant
got into a fight with a roommate, Martin Delgado, after work. Appellant beat Delgado on
the head with a toaster, kicked the bedroom door down, and threatened to kill Delgado and
1 All statutory references are to the Penal Code.

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his brother. Appellant threatened to kill the officer responding to the 911 call and resisted
three officers assisting in the arrest.
At the sentencing hearing, the trial court read and considered the presentence
investigation report and statement-in-mitigation letters, and imposed a state prison sentence
with restitution fines, victim restitution, and the recommended $1,524 presentence
investigation fee. Defense counsel was asked, "[I]s there anything else you want to put on
the record?" Counsel replied, "No. Thank you very much"
Ability to Pay
Section 1203.1b, subdivision (b) provides : "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." Appellant contends that the trial court failed to find that he had the
financial ability to pay the presentence investigation fee and there is no evidence to support
such a finding. The Attorney General argues that appellant did not object, forfeiting the
alleged error. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.) But no objection is
required in order to preserve a claim of insufficient evidence for appeal. (See People v.
Pacheco (2010) 187 Cal.App.4th 1392, 1397; People v. Viray (2005) 134 Cal.App.4th 1186,
1217; People v. Lopez (2005) 129 Cal.App.4th 1508, 1536–1537.)
Section 1203.1b, subdivision (e) provides in pertinent part: "The term 'ability
to pay' means the overall capability of the defendant to reimburse the costs, or a portion of
the costs, of conducting the presentence investigation. . . and shall include, but shall not be
limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible
future financial position. In no event shall the court consider a period of more than one
year from the date of the hearing for purposes of determining reasonable discernible future
financial position." Furthermore, “[i]n making a determination of whether a defendant has
the ability to pay, the court shall take into account the amount of any fine imposed upon the
defendant and any amount the defendant has been ordered to pay in restitution.” (§ 1203.1b,
subd. (b)(3).)

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In view of the restitution order and victim restitution fines, the 18 year 4
month prison sentence, coupled with appellant's lack of assets and on-going child support
obligations, appellant does not have, and has no prospects of having, the financial ability to
pay the $1,524 presentence investigation fee. Unless the trial court finds unusual
circumstances, a defendant sentenced to state prison is presumed not to have the future
financial ability to reimburse the costs of his or her defense or a presentence investigation
fee. (See People v. Flores (2003) 30 Cal.4th 1059, 1068.) Nothing in the record shows that
appellant will be able to pay the presentence investigation fee. (See e.g., People v. Lopez,
supra, 129 Cal.App.4th at p. 1537 [express finding of unusual circumstances necessary to
order defendant to reimburse cost of his or her defense per §987.8, subd. (g)(2)(B)].)
The $1,524 presentence investigation fee is stricken. The superior court clerk
is directed to amend the August 16, 2011 sentencing minute order and abstract of judgment
and to forward certified copies to the California Department of Corrections and
Rehabilitation.
The judgment, as modified, is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.

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David M. Hirsch, Judge
Superior Court County of Ventura
______________________________
California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M.
Daniels, Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.

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