P. v. Rucker

Filed 2/28/07 P. v. Rucker CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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This is an appeal from an order made after judgment.

Having considered defendants appeal from judgment on a prior occasion (People v. David Darrell Rucker (March 28, 2001) C032283 [nonpub. opn.] (hereafter Rucker I), this court is familiar with the facts and procedural history which we recount from Rucker I.

Defendant, while driving under the influence, crashed his Chevrolet Blazer into a parked Ford truck. A jury found defendant David Darrell Rucker guilty of driving under the influence of an alcoholic beverage (Veh. Code, 23152, subd. (a)) and of driving with a blood alcohol level of .08 percent or greater (Veh. Code, 23152, subd. (b)), with an enhancement for driving with a blood alcohol level of .20 or higher (Veh. Code, 23206.1). The jury also found that defendant committed misdemeanor hit-and-run (Veh. Code, 20002, subd. (a)) while driving on the wrong side of the road (Veh. Code, 21650 ). Because the trial court found that defendant had suffered three prior serious felony convictions within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i)), he was sentenced to a term of 25 years to life in state prison. When sentence was imposed in February 1999, the court also ordered defendant to pay a $10,000 restitution fine.

On the prior appeal, defendant challenged only a jury instruction. We rejected his contention and affirmed the judgment. On September 28, 2005, more than four years later, defendant sought modification of the restitution fine, claiming insufficient evidence supports a finding of his ability to pay. Defendant claimed that at the prison inmate pay rate, the amount he would pay in restitution in the minimum 16 years on his

25-year-to-life term would not exceed $922.25. On February 22, 2006, the trial court denied the motion, finding that the fine imposed was commensurate with the prison term imposed and that defendant failed to demonstrate an inability to pay the amount which does not have to be paid off while defendant is in prison. On March 13, 2006, defendant sought reconsideration. He explained that the sole job he had as a prison inmate was a nonpaying job. He also claimed that prior to his incarceration, he had been unemployed for one year. He noted that even if released at the earliest possible release date, he would be in his sixties and eligible for social security. On March 21, 2006, the trial court denied defendants motion for reconsideration.

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief. He claims that defense appellate counsel failed to mention the following. Defendant claims he previously filed the same motion to modify his restitution fine on September 16, 2003, and that the trial court violated the rules of court in failing to answer or to send him a stamped filed copy. Defendant then claims that the rules of court require the court to rule on the petition and if the court fails to rule on the petition after 60 days of filing[,] an order to show cause will be deem[ed] to have issue[d]. He also claims that only after he filed an order to show cause with this court on December 21, 2005 did the trial court rule on his motion for modification of sentence filed on September 23, 2005.

The record on appeal does not reflect that defendant previously filed the same motion to modify his restitution fine on September 16, 2003. In referring to the rules of court and a petition, defendant may mean a petition for a writ of habeas corpus. The record on appeal in this case does not reflect that defendant filed a petition for a writ of habeas corpus in the trial court or an order to show cause with this court. In any event, the procedural history defendant notes has no effect upon the trial courts rulings on defendants motion to modify his restitution fine and his motion for reconsideration at issue in this appeal.

The amount of the additional restitution fine, which is at the discretion of the court and commensurate with the seriousness of the offense, requires no statement of formal reasons on the record. [Citations.] The court need not make express findings as to the factors bearing on the amount of the fine and need not hold a separate hearing for the fine. [Citation.] Unless there are compelling and extraordinary reasons, defendants lack of assets and limited employment potential are not germane to his or her ability to pay the fine. [Citation.] In the absence of a contrary showing, the court is entitled to presume the defendant will pay the restitution fine out of future earnings. [Citations.] (People v. Urbano (2005) 128 Cal.App.4th 396, 405.) [I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendants present ability but may consider a defendants ability to pay in the future. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487, italics in original.) This includes the defendants ability to earn wages in prison and after his release from custody. (Ibid.)

Defendant challenges the imposition of the restitution fine on the basis of the sufficiency of the evidence to support his ability to pay. As such, defendant challenges the discretionary sentencing decision of the trial court. Defendant had the opportunity on the prior appeal (Rucker I) to challenge the trial courts discretionary sentencing choice in imposing the $10,000 restitution fine but failed to do so. We affirmed and remittitur issued. It appears that the trial court lacked jurisdiction to consider defendants request for modification. (Compare Pen. Code, 1202.46 [authorizing trial court to issue postjudgment order modifying victim restitution or imposing omitted restitution fine or victim restitution]; Pen. Code,

1202.4, subd. (f) [postjudgment modification of victim restitution]; see People v. Ainsworth (1990) 217 Cal.App.3d 247, 249, 255, 259; Pen. Code, 1265.) In any event, the record supports an implied finding that defendant has the ability to pay the $10,000 restitution fine. The probation report, part of which was attached to defendants motion for reconsideration, reflects that defendant graduated from high school in 1982, was not under the care of a physician for any problems and had worked as a full-time janitor at Wal-Mart before he quit due to personal problems. Even though it is uncertain how much of the $10,000 fine defendant will be able to pay while in prison, defendant has the ability to pay the restitution fine by earning wages in prison and after his release from custody. The trial court properly denied defendants motion for modification of the restitution fine.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

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