Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC812955
Mihara, J.
Defendant Pete Vincent Montoya appeals from a judgment of conviction entered after he pleaded no contest to involuntary manslaughter (Pen. Code, § 192, subd. (b)) and admitted personally inflicting great bodily injury on another (§§ 667, 1192.7). He also admitted that he suffered three strike convictions (§§ 667, subds. (b) - (i), 1170.12) and two serious felony convictions (§ 667, subd. (a)). After striking two of defendant’s strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court sentenced defendant to 16 years in state prison. The trial court also imposed, among other things, a restitution fine of $3,200 and victim restitution of $3,300. On appeal, defendant contends: (1) the trial court erred in limiting his credits to 15 percent under section 2933.1; and (2) the trial court’s imposition of the restitution fine violated the plea agreement. We conclude that the trial court erred in calculating defendant’s credits and the trial court failed to consider defendant’s ability to pay the restitution fine as required under the plea agreement. Accordingly, the judgment must be reversed.
All further statutory references are to the Penal Code.
We do not include a statement of facts, because it is not relevant to the issues on appeal.
Defendant contends, and the People concede, that the trial court erred in limiting his credits to 15 percent pursuant to section 2933.1.
Section 2933.1, subdivision (a) provides: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”
In addition to a list of enumerated offenses that includes murder and voluntary manslaughter but excludes involuntary manslaughter, section 667.5, subdivision (c) includes “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Sections 12022.7, 12022.8, or 12022.9....” (§ 667.5, subd. (c).) Section 12022.7, which provides for an additional term of imprisonment for personally inflicting great bodily injury, does not apply to murder or manslaughter. (§ 12022.7, subd. (g).) Section 12022.8 provides for an additional term of imprisonment for specified sex offenses. (§ 12022.8.) Section 12022.9 provides for an additional term of imprisonment where the felony results in the death of an unborn child. (§ 12022.9.)
Here, defendant pleaded no contest to involuntary manslaughter and admitted that he personally inflicted great bodily injury within the meaning of sections 667 and 1192.7. However, the prosecutor did not charge and prove any enhancement qualifying defendant’s involuntary manslaughter conviction as a “ ‘violent felony’ ” within the meaning of section 667.5, subdivision (c). Moreover, the prosecutor could not have done so because section 12022.7, subdivision (g) expressly states that any such enhancement does not apply to manslaughter. Accordingly, the trial court erred in limiting defendant’s credits under section 2933.1.
Defendant next contends that the trial court failed to keep its promise to consider his ability to pay in calculating the amount of the restitution fine. We agree.
At the change of plea hearing, the trial court advised defendant that “[t]here is a restitution fund fine in this case required by the law, and they are all going to be based on ability to pay based on fine[s] and fees of a minimum of $200, maximum of $10,000.... [¶]... You will be required to fill out a Statement of Assets form that tells us what you own, and you sign it under penalty of perjury, and that will help us to determine your ability to pay the fines and fees.”
The probation report recommended that a restitution fine of $10,000 be imposed under section 1202.4. Defendant did not submit a statement of assets. At the sentencing hearing, the trial court imposed a restitution fine of $3,200 pursuant to the formula in section 1202.4. The trial court made no findings regarding defendant’s ability to pay this fine.
Section 1202.4, subdivision (b)(2) provides: “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.”
The People argue that defendant failed to submit a statement of assets, thus forfeiting the issue on appeal. Defendant’s failure, however, did not excuse the trial court from considering defendant’s ability to pay the fine. The record conclusively establishes that defendant had no assets. He had been homeless for several years. Though he earned a “small salary” for overseeing a wood storage yard, there was no evidence that he had amassed any savings. Nor will defendant be able to earn enough money while he is in prison to pay victim restitution of $3,300 and the restitution fine of $3,200. His work history includes factory worker, drill press operator, fork lift driver, landscaper, and tree trimmer. Even assuming that defendant has a special skill, his beginning salary in prison would be $29 per month. (Cal. Code Regs., tit. 15, § 3041.2(a)(1).) Since his sentence is approximately 11.8 years, he would earn $4,106.40. After paying victim restitution, defendant would have only $806.40 to pay his restitution fine. Moreover, defendant is 58 years old. He will be almost 70 years old when he is released from prison. Given his age, work history, and ex-felon status, he will have minimal, if any, employment prospects. Accordingly, the matter must be remanded to the trial court for a determination of defendant’s ability to pay the restitution fine under section 1202.4.
Citing People v. Menius (1994) 25 Cal.App.4th 1290, the People also argue that defendant forfeited the issue because he neither objected nor requested a hearing on his ability to pay. However, Menius did not involve a violation of a plea agreement. Where the claim involves an alleged violation of the plea agreement, the issue is “not waived by a mere failure to object at sentencing.” (People v. Walker (1991) 54 Cal.3d 1013, 1025.)
In arguing that the records supports an implied finding of an ability to pay the restitution fine, the People rely on People v. Gentry (1994) 28 Cal.App.4th 1374 (Gentry) for the proposition that the trial court was entitled to consider the top rate for prison labor. Gentry does not support this proposition. Gentry held that the trial court could consider the entire amount a defendant might earn in prison, and not merely the amount that the Department of Corrections was authorized to deduct from the defendant’s prison wages. (Gentry, at p. 1377.)
The People’s reliance on People v. DeFrance (2008) 167 Cal.App.4th 486 (DeFrance) is also misplaced. In DeFrance, the defendant argued that the trial court abused its discretion in imposing a $10,000 restitution fine under section 1202.4 because he lacked the ability to pay it. (DeFrance, at pp. 504-505.) DeFrance held that the defendant did not meet his burden to “show an absolute inability to ever pay the fine, ” and thus there was no abuse of discretion. (DeFrance, at p. 505.) In contrast to DeFrance, here, the trial court was required to consider defendant’s ability to pay the fine under the plea agreement.
II. Disposition
The judgment is reversed. On remand, the trial court is directed to amend the abstract of judgment to reflect the additional credits to which defendant is entitled and to conduct a hearing on defendant’s ability to pay the restitution fine.
WE CONCUR: Bamattre-Manoukian, Acting P. J.McAdams, J.