People v. Joseph CA3

Filed 9/16/20 P. v. Joseph CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Plumas) ----

THE PEOPLE, C088975

Plaintiff and Respondent, (Super. Ct. No. F18-00490)

v.

MICHAEL WAYNE JOSEPH,

Defendant and Appellant.

Following a trial, a jury found defendant Michael Wayne Joseph guilty of assault with a deadly weapon, felony vandalism, and attempting to dissuade a witness. He was sentenced to serve an aggregate prison term of 10 years 8 months. The court imposed various fines, fees, and assessments. On appeal, he contends: (1) the imposition of the restitution fine, court operations assessment, and court facilities assessment violates his constitutional rights because there was no determination of his ability to pay them; and (2) the trial court erred in imposing the presentence probation report fee in violation of his constitutional rights because the probation department did not determine he had the

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ability to pay for the cost of the report. We conclude there was no violation of defendant’s constitutional rights when the trial court imposed the mandatory restitution fine and assessments without an ability to pay determination. As to the imposition of the presentence probation report fee, we conclude defendant forfeited this contention. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND During an altercation, defendant hit the first victim with a shovel several times, hit the victim’s truck with the shovel, then hit the second victim with the shovel. Defendant sent a letter from jail asking the recipient to ask the victims not to testify. Following a trial, a jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 felony vandalism (§ 594, subd. (a)), and attempting to dissuade a witness (§ 136.1, subd. (a)(2)). The jury acquitted defendant of a second count of assault with a deadly weapon. Defendant admitted allegations that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12). The court imposed an aggregate sentence of 10 years 8 months, as follows: the upper term of 4 years for assault, doubled to 8 because of the strike; one-third the middle term, 8 months for felony vandalism, doubled to 16 months because of the strike; and one-third the middle term, 8 months for attempting to dissuade a witness, doubled to 16 months because of the strike. The trial court struck the prior serious felony enhancement. The trial court imposed various fines and fees, including a restitution fine in the amount of $300, a $40 per count court operations assessment for a total of $120, and a $30 per count court facilities assessment for a total of $90. The court ordered defendant to pay $487 for the cost of the presentence report pursuant to section 1203.1b, subdivision (b),