People v. Logue CA3

Filed 3/24/14 P. v. Logue CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte)

THE PEOPLE, C072302

Plaintiff and Respondent, (Super. Ct. No. CM036812)

v.

WILLIAM ELLIS LOGUE,

Defendant and Appellant.

Defendant William Ellis Logue pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 in exchange for dismissal of a great bodily injury enhancement, with no agreement as to sentencing. The trial court sentenced defendant to the middle term of three years in state prison and, as relevant here, ordered

1 Further undesignated statutory references are to the Penal Code.

1

him to pay a $736 probation report fee (§ 1203.1b), a $720 restitution fine (§ 1202.4, subd. (b)), and a $780 penal fine (§ 672). Defendant appeals, contending there is insufficient evidence of his ability to pay the probation report fee or the restitution fine, and if those claims are deemed forfeited due to lack of an objection in the trial court, his trial counsel was ineffective. Defendant further asserts that the $780 penal fine constitutes an unauthorized sentence. We shall conclude defendant forfeited his insufficient evidence claim and his ineffective assistance claim is best addressed in habeas corpus proceedings. We shall further conclude that the $780 penal fine is authorized under section 245, subdivision (a)(1) and shall modify the judgment to reflect that the penal fine was imposed pursuant to that section and not section 672. We shall affirm the judgment as modified. DISCUSSION2 I Defendant contends there is insufficient evidence of his ability to pay the probation report fee and any amount beyond the $240 mandatory minimum restitution fine. The probation report fee is based on section 1203.1b, which authorizes the recoupment of certain costs incurred for the preparation of presentence investigations and reports on the defendant’s amenability to probation. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070 (Valtakis).) Section 1203.1b, subdivision (b) provides in pertinent part: “The [trial] 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.”