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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B307227
(Super. Ct. No. 2017000623)
Plaintiff and Respondent, (Ventura County)
v.
LAVEL JOE MORTON,
Defendant and Appellant.
Lavel Joe Morton appeals 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, § 29550.2) must be vacated pursuant to Assembly Bill
No. 1869 (2020-2021 Reg. Sess.) (A.B. 1869) (see 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 (Dueñas).
1 Further unspecified statutory references are to the Penal
Code.
We vacate the order imposing the booking fee, but
otherwise affirm.
FACTUAL 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 counts 2 and 3, doubled to
32 months pursuant to section 667, subdivision (e)(1); plus five
years pursuant to section 667, subdivision (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 the imposition of a $900 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.
2
Pursuant to section 1202.4, subdivision (d), if the
restitution fine is in excess of the minimum 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 applied 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 prison. (People v. Lowery (2020) 43 Cal.App.5th
1046, 1061.)
Moreover, 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.
3
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, alongside ‘any relevant factors.’” (Id. at p. 1057.)
There was no due process violation.
DISPOSITION
The order imposing a $503.87 booking fee is vacated.
Except as so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
4
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 Pithey,
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.