Filed 7 / 27 / 21 P. v. Morton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

LAVEL JOE MORTON,

Defendant and Appellant. 2d Crim. No. B307227 (Super. Ct. No. 2017000623) (Ventura County)

Lavel Joe Morton appeal s from the judgment after he pled no contest to three counts of burglary ( Pen. Code, 1 § 459)

. He contends the trial court’s order to pay a $ 503.87 booking fee (Gov. Code, § 29 550.2) must be vacated p ursuant to Assembly Bill

No. 1869 (2020

- 2021 Reg. Sess.) (A.B. 1869) ( s ee also Gov. Code, § 6111)

, and that the order to pay a $900 restitution fine (§ 1202.4) must be stayed pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 ( Due ñas )

.

1 Further unspecified statutory references are to the Penal Code.2 We vacate the order imposing the booking fee

, but

otherwise affirm.

FACT UAL AND PROCEDURAL HISTORY

In January 2017, Morton burglarized several homes

in Thousand Oaks

.

Morton pled no contest to three counts of residential burglary (§ 459) and admitted that he had three prior serious felony (§ 667, subd. (a)) and three prior strike convictions ( § 667

, subds. (b)

- (i ).) The court struck two strike allegations. It also

struck the prior serious felony enhancements on counts 2 and 3

. It sentenced him to 14 years and four months in state prison ( two years for count 1

, doubled to four years pursuant to section 667, subdivision (e)(1) ; 16 months each for count s 2 and 3 , doubled to
32 months p ursuant to section 667, subdivision (e)(1) ; plus five

years pursuant to section 667, subd ivision (a)). The court ordered Morton to pay fines and fees, including a $503.87 booking fee ( Gov. Code, § 29550.2) and a $900 restitution fine (§ 1202.4, subd. (b)

. DISCUSSION Booking Fee

Morton contends that the $503.87 booking fee is no longer enforceable pursuant to A.B. 1869 . We agree. ( Gov. Code, § 6111, subd. (a).) The unpaid balance of the booking fee is uncollectible, and the civil judgment imposing the fee is

unenforceable and must be vacated. ( Ibid

. )

Restitution Fine

Morton contends th e imposition of a $9 00 restitution fine (§ 1202.4) without determining his ability to pay violated his state and federal right to due process

. ( Dueñas

, supra , 30 Cal.App.5th 1157

. ) This contention lacks merit.3 Pursuant to section 1202.4, subdivision (d), if the

restitution fine is in excess of the minim um fine, “the court shall consider any relevant factors, including, .

. . the defendant ’ s inability to pay

. . . . A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by

the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.” ( Ibid .)

Here, the court imposed a restitution fine above the

minimum amount and well below the maximum fine

. We

presume the court properly a pplied the law and considered

relevant factors such as Morton’ s ability to pay (§ 1202.4, subd. (d))

. ( People v. Coddington (2000) 23 Cal.4th 529, 644 [reviewing

court presumes trial court knew and applied the correct statutory and case law], overruled on another ground in Price v. Superior

Court (2001) 25 Cal.4th 1046, 1069, fn. 13 and superseded on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107, fn. 4.) The court could have properly considered Morton’s ability to earn wages during his prison sentence. 2 The record reflects that Morton was 26 years old at the time of sentencing

and nothing in the record suggests he was unable to perform

work while in pr ison

. ( People v. Lowery (20 20) 43 Cal.App.5th 1046, 1061.)

M oreover , inability to pay a restitution fine above the
statutory minimum does not automatically invalidate it. ( People

2 Prison wages currently range from $12 to $56 per month. (Cal. Code. Regs., tit. 15, § 3041.2.) The state may garnish up to 50 percent of those wages to pay a restitution fine. (§ 2085.5, subds. (a), (c).) Prison wages could pay a substantial amount of the restitution fine.4

v. Potts (2019) 6 Cal.5th 1012, 1056.) Inability to pay is but “a factor for the court to consider in setting the amount of a restitution fine, al ongside ‘any relevant factors.’ ” ( Id . at p. 1057.) There was no due process violation.

DISPOSITION

The order imposing a $503.87 booking fee is v acated

. Except as so modified , the judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.David M. Hirsch, Judge

Superior Court County of Ventura

______________________________

Richard B. Lennon , under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan P ithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.