Filed 12/23/19 P. v. Arenas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO J. ARENAS,

Defendant and Appellant.

D075294

(Super. Ct. No. SCS299677)

APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed, as modified and remanded with directions.

Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

Pedro J. Arenas entered into a plea agreement under the terms of which he pleaded guilty to robbery (Pen. Code, § 211) committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Arenas also admitted a prior serious/violent felony [strike] conviction (§ 667, subds. (b)-(i)) and a serious felony prior conviction (§ 667, subd. (a)(1)). The parties stipulated to a 19-year prison term. The remaining charges were dismissed. Arenas was sentenced to a 19- year term as stipulated in the plea agreement.

Arenas appeals challenging only the fines, fees and assessments imposed by the trial court. Arenas contends the court, who imposed the amounts as set forth in the probation officer’s report, did not knowingly exercise its discretion in imposing the amounts and whether Arenas had a right to a hearing on his ability to pay the amounts. The Attorney General agrees the court did not knowingly exercise its discretion and thus, the matter should be remanded to the trial court for a new hearing on fines, fees and assessments.

We agree the trial court erred in its understanding of the scope of the court’s discretion. We also agree the case must be remanded for a new hearing on the defendant’s ability to pay fines, fees and assessments.

DISCUSSION

A. Background

The trial court imposed the fines, fees and assessments as they were set forth in the probation officer’s report, without analysis of how they were calculated. The probation officer recommended a restitution fine, (§ 1202.4, subd. (b)(1)), in the amount of $5,700. The report also recommended nonpunitive assessments and fees.

When defense counsel objected to the fines, fees and assessments on the basis that Arenas lacked the ability to pay, the court responded: “[T]here is a statute that mandate[s] the fines. These fines that I impose are the minimums allowed by law. And they are mandatory. They’re not subject to any ability to pay analysis. So, I understand your objection. And I am going to impose those fines.”

As we will discuss, the court was wrong regarding the calculation of the punitive restitution fine which clearly provides the court discretion to set the fine at amounts less than or more than the $5,700 in the probation report. Second, the statute provides the court with the authority to consider ability to pay amounts in excess of the $300 minimum.

The other fees and assessments are not punitive and are subject to an ability to pay analysis.

B. Legal Principles

A defendant is entitled to have the court knowingly exercise its discretion, which includes the court being aware of the scope of its discretionary authority. Failure to exercise informed discretion constitutes an abuse of the court’s discretionary authority. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Where the record establishes that the trial court did not understand its discretion or that it was uninformed as to its authority, the remedy is to remand the case to permit the court to again exercise its discretion in an informed manner. (Ibid.)

As we have already pointed out, the trial court erred in its analysis of its authority to impose the various fines, fees and assessments involved in this case. We express no opinion on how the court should exercise its discretion.

DISPOSITION

That portion of the sentence addressing fines, fees and assessments is vacated. The matter is remanded to the trial court to conduct a hearing on the defendant’s ability to pay and to exercise its discretion as may be appropriate. Following the hearing, the court shall amend the abstract of judgment to reflect the amounts assessed and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.