People v. Joyce CA2/6

Filed 7/22/14 P. v. Joyce CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250702 (Super. Ct. Nos. 2011009095, Plaintiff and Respondent, 2012036777) (Ventura County) v.

MITCHELL ALAN JOYCE,

Defendant and Appellant.

In Case No. 2011009095, Mitchell Alan Joyce appeals a judgment entered following his guilty plea to possession of heroin, with admissions that he suffered a prior serious felony strike conviction, and served four prior prison terms. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) In Case No. 2012036777, Joyce appeals a judgment entered following his guilty plea to possession of heroin, with admissions that he suffered a prior serious felony strike conviction, served four prior prison terms, and was on bail at the time he committed the offense. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b), 12022.1, subd. (b).) We affirm. FACTS AND PROCEDURAL HISTORY On April 23, 2013, Joyce waived his constitutional rights and pleaded guilty to possession of heroin in Case Nos. 2011009095 and 2012036777. Joyce also

admitted suffering a prior serious felony strike conviction, serving four prior prison terms, and in Case No. 2012036777, possessing heroin while on bail in the earlier case. The trial court granted Joyce's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, and struck the prior serious felony strike conviction. The court also dismissed the bail and prior prison term allegations. It then sentenced Joyce to an upper prison term of three years for each case, to be served concurrently. For each case, the court imposed a $280 restitution fine, a $280 parole revocation restitution fine (stayed), a $600 drug program fee, and a $200 laboratory analysis fee. (Pen. Code, §§ 1202.4, subd. (b), 1202.45; Health & Saf. Code, §§ 11372.7, subd. (a), 11372.5, subd. (a).) It also imposed a collective $80 court security assessment and a $60 criminal conviction assessment. (Pen. Code, § 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) The court awarded Joyce 605 days of presentence custody credit in Case No. 2011009095, and 512 days of presentence custody credit in Case No. 2012036777. Joyce appeals and challenges the amount of the restitution fines and drug program fines. DISCUSSION Joyce contends that the trial court misunderstood its sentencing discretion when it imposed the $280 restitution fine and $600 drug program fee in each case. (Pen. Code, § 1202.4, subd. (b) [restitution fine]; Health & Saf. Code, § 11372.7, subd. (a) [drug program fee].) He points out that in March 2011, when he committed the offense in Case No. 2011009095, the minimum restitution fine was $200. In October 2012, when he committed the offense in Case No. 2012036777, the minimum restitution fine was $240. Joyce adds that Health and Safety Code section 11372.7, subdivision (b) has an "ability to pay" provision and he asserts that the trial court intended to impose only minimum fines and fees. At sentencing, Joyce's counsel stated: "I am going to ask the Court to find that [Joyce] does not have the ability to pay for the presentence report. And also based on the fact that he is going to be spending – going to prison, he's asking the Court – he's