Filed 8/19/20 P. v. Steele 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                                           NOT TO BE PUBLISHED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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Lassen)
                                                            ----




    THE PEOPLE,                                                                                C088665

                    Plaintiff and Respondent,                                     (Super. Ct. No. CH035617)

           v.

    WANDA JANETTE STEELE,

                    Defendant and Appellant.




          Defendant Wanda Janette Steele appeals from the judgment entered after she
pleaded guilty to conspiracy to introduce a controlled substance (methamphetamine) into
a state prison. (Pen. Code, §§ 182, subd. (a)(1), 4573.)1 She contends the trial court’s
order imposing a $600 presentence investigation report fee must be reversed because the
record contains insufficient evidence of her ability to pay this fee. She further contends



1   Undesignated statutory references are to the Penal Code.

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that reversal is required because her three-year county jail sentence violates equal
protection principles, as she is unable to earn the same conduct credits that she could earn
had she been sentenced to state prison. Anticipating that she may have forfeited her
claims for failing to object below, she alternatively argues that trial counsel rendered
ineffective assistance. We affirm the judgment.
                                     BACKGROUND
       We dispense with a recitation of the facts underlying the charged offenses as they
are unnecessary to our resolution of this appeal. It suffices to say that in July 2018,
defendant was charged by information with one count of conspiracy to introduce
methamphetamine into a state prison (§§ 182, subd. (a)(1), 4573; count I) and two counts
of sending methamphetamine into a state prison (§ 4573; counts II and III). In August
2018 she pleaded guilty to count I and the remaining counts were dismissed in
accordance with the terms of a written plea agreement. In December 2018 the trial court
sentenced her to three years in county jail and imposed various fines and fees, including a
$600 presentence investigation report fee. The trial court also advised her that she was
subject to a three-year period of postrelease community supervision (PRCS) following
her release from custody.2




2 The Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st
Ex. Sess. 2011-2012, ch. 12, § 1 (Realignment Act)) shifted responsibility for housing
and supervising low-level felony offenders, who have neither current nor prior
convictions for serious or violent offenses, from the state to the individual counties.
(People v. Scott (2014) 58 Cal.4th 1415, 1418-1419; People v. Cruz (2012) 207
Cal.App.4th 664, 671.) As part of the Realignment Act, the Legislature created PRCS as
an alternative to parole for non-serious, nonviolent felonies. (People v. Gutierrez (2016)
245 Cal.App.4th 393, 399; see 3451, subd. (a).) A felon who qualifies for PRCS may be
subject to supervision for up to three years after their release from custody. (Ibid.)
“Although monitored by county probation officers, a defendant on PRCS is not on
probation and PCRS is similar to parole.” (People v. Jones (2014) 231 Cal.App.4th
1257, 1266.)

                                              2
       This timely appeal followed.
                                       DISCUSSION
                                               I
                           Presentence Investigation Report Fee
       Defendant contends the trial court erred in imposing a $600 presentence
investigation report fee because the record contains insufficient evidence of her ability to
pay this fee. She argues that the fee should be stricken, or the matter remanded for a
hearing to determine her ability to pay. Anticipating that she may have forfeited her
claim for failing to object below, she alternatively argues that trial counsel rendered
ineffective assistance. We conclude that defendant has forfeited her claim of error and
failed to establish ineffective assistance of counsel.
       Prior to sentencing, the probation officer filed a report recommending that
defendant pay various fines and fees, including a presentence investigation report fee in
the amount of $600 dollars under section 1203.1b.3 With respect to her financial status,
the report noted that defendant was unemployed, had been permanently disabled since
2005, and received $920 per month in disability and Social Security benefits. In the
section titled “1203.1b PC,” the report stated, in pertinent part: “The defendant is hereby
given notice that she has the right to a Court hearing with counsel for determination of
ability to pay for the pre-sentence report fee . . . . The defendant has the right to a review
of her financial ability to pay at any time during the pendency of judgment rendered.”



3   Section 1203.1b, subdivision (a) provides, in pertinent part: “[T]he probation officer
. . . shall make a determination of the ability of the defendant to pay all or a portion of the
reasonable cost of . . . preparing any presentence report made pursuant to . . . Section
1203. . . .” (§ 1203.1b, subd. (a).) Section 1203.1b, subdivision (b) provides, in pertinent
part: “The [trial] court shall order the defendant to pay the reasonable costs if it
determines that the defendant has the ability to pay those costs based on the report of the
probation officer . . . .” A defendant is entitled to a hearing on his or her ability to pay,
but may waive that right. (§ 1203.1b, subd. (a).)

                                              3
       At sentencing, the trial court imposed various fines and fees, including the
recommended $600 presentence investigation report fee. Defendant did not object to this
fee or request an ability to pay hearing. When asked, defendant indicated that she needed
a payment plan to pay for the fines and fees and could pay $50 a month following her
release from custody. She requested that her payment be due on the third of every month
because that was the day she “g[o]t paid.” Thereafter, the court ordered defendant to
make a $50 payment on the 15th of every month, beginning 60 days after she was
released from custody.
       We conclude defendant has forfeited her claim of error. Our Supreme Court has
repeatedly held that when a court imposes fees and/or fines pursuant to statutes that
explicitly include ability to pay findings, the defendant must raise an objection at the
sentencing hearing or forfeit the appellate claim that the court failed to make such a
finding or there was no evidence of the defendant’s ability to pay the imposed amounts.
(See People v. Case (2018) 5 Cal.5th 1, 52-53; People v. McCullough (2013) 56 Cal.4th
589, 590, 598-599; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache
(2010) 48 Cal.4th 347, 409; People v. Avila (2009) 46 Cal.4th 680, 728-729.) In
People v. Trujillo (2015) 60 Cal.4th 850, our Supreme Court specifically addressed the
imposition of probation costs under section 1203.1b, and concluded that a defendant must
object in the trial court as a prerequisite to challenging such costs on appeal. (Id. at pp.
853-854, 857-859 [probation supervision and presentence investigation report fees]; see
also People v. Aguilar (2015) 60 Cal.4th 862, 864-865 [same]; People v. Snow (2013)
219 Cal.App.4th 1148, 1149-1151 [same].) Having concluded that defendant forfeited
her ability to challenge the presentence investigation report fee on appeal, we turn to her
ineffective assistance of counsel argument.
       In order to establish a claim of ineffective assistance of counsel, the defendant has
the burden of demonstrating that counsel’s performance was deficient because it fell
below an objective standard of reasonableness under prevailing professional norms and

                                              4
he or she was prejudiced by that deficiency. (People v. Lopez (2008) 42 Cal.4th 960,
966.) “ ‘Unless a defendant establishes the contrary, we shall presume that “counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If
the record “sheds no light on why counsel acted or failed to act in the manner
challenged,” an appellate claim of ineffective assistance of counsel must be rejected
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” [Citations.]’ ” (Ibid.) “A claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v.
Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claims properly resolved on
direct appeal only where record affirmatively discloses no rational tactical purpose for
counsel’s act or omission].)
       We conclude defendant has failed to carry her burden to establish that trial counsel
provided inadequate representation by failing to object to the presentence investigation
report fee. The record is silent as to why trial counsel did not object to the fee. While the
probation report noted that defendant had no assets, was unemployed, and owed debts, it
also noted that she received $920 per month in benefits. At sentencing, defendant
indicated that she could make monthly payments in the amount of $50 after she was
released from custody. Under the circumstances, trial counsel could have reasonably
concluded that defendant had the ability to pay all of the fines and fees imposed,
including the presentence investigation report fee.
       Citing a government website discussing Social Security and disability benefits,
defendant claims that trial counsel was ineffective because her “modest disability income




                                             5
ceased upon incarceration.”4 Though this appears to be true, the same website indicates
that Social Security and disability benefits may be reinstated following a term of
incarceration <https://www.ssa.gov/reentry/benefits.htm> (as of August 17, 2020),
archived at <https://perma.cc/H5SD-MDLT>.) Defendant has made no effort to show
that she will be ineligible for reinstatement of Social Security and disability benefits
following her term of incarceration, let alone that trial counsel was or should have been
aware of her ineligibility at the time of sentencing. Moreover, even if trial counsel had
knowledge of her ineligibility for reinstatement of benefits following her release from
custody, it is possible that counsel was aware of facts outside the record that would have
supported an ability-to-pay finding. (See People v. Price (1991) 1 Cal.4th 324, 387
[counsel does not render ineffective assistance by failing to make objections that counsel
reasonably determines would be futile].) Accordingly, since defendant failed to
demonstrate that “ ‘ “there simply could be no satisfactory explanation” ’ ” for trial
counsel’s lack of objection to the presentence investigation fee, defendant’s ineffective
assistance claim fails. (People v. Lopez, supra, 42 Cal.4th at p. 966.)
       Even if we assume inadequate representation, defendant has failed to establish
prejudice, because she is entitled to challenge her ability to pay the fee during the
pendency of the judgment, including when she is on PRCS. Our Supreme Court has
explained that a “defendant who by forfeiture of a hearing is precluded from raising on
appeal the issue of ability to pay probation-related fees is not wholly without recourse.
. . . ‘[t]he court may hold additional hearings during the probationary, conditional




4 Defendant has not asked us to take judicial notice of the information published on the
government website she references. Because the information on that website is irrelevant
to the disposition of the issues raised in this appeal, we need not decide whether judicial
notice is appropriate. (See Quantification Settlement Agreement Cases (2011) 201
Cal.App.4th 758, 795, fn. 22 [“ ‘As a general matter, judicial notice is not taken of
matters irrelevant to the dispositive points on appeal’ ”].)

                                              6
sentence, or mandatory supervision period to review the defendant’s financial ability to
pay. . . . Likewise, during the pendency of the judgment rendered under section 1203.1b,
the defendant ‘may petition the probation officer for a review of [his or her] financial
ability to pay or the rendering court to modify or vacate its previous judgment on the
grounds of a change of circumstances with regard to the defendant’s ability to pay the
judgment.’ [Citation.] The sentencing court as well as the probation officer thus retains
jurisdiction to address ability to pay issues throughout the probationary [or other
supervisory] period.” (People v. Trujillo, supra, 60 Cal.4th at pp. 860-861; see
§ 1203.1b, subd. (f).)5
                                              II
                                Equal Protection Challenge
       Defendant contends that reversal is required because her county jail sentence
violates equal protection principles, as she is unable to earn the same conduct credits she
could earn had she been sentenced to state prison. According to defendant, a person
incarcerated in county jail can earn up to 50 percent in conduct credits while a person
incarcerated in state prison can earn up to 66 percent in conduct credits in addition to
various other credits. She argues that the “difference between these two possibilities”
constitutes a violation of the equal protection clause of the state and federal Constitutions.
In support of her position, defendant contrasts section 4019, which involves conduct




5 Section 1203.1b, subdivision (f) provides, in pertinent part: “At any time during the
pendency of the judgment rendered according to the terms of this section, a defendant
against whom a judgment has been rendered may petition the probation officer for a
review of the defendant’s financial ability to pay or the rendering court to modify or
vacate its previous judgment on the grounds of a change of circumstances with regard to
the defendant’s ability to pay the judgment.”

                                              7
credits that may be earned in local custody and other non-prison settings,6 with various
Penal Code sections (§§ 2933, 2933.05, 2933.3, 2935)7 and state regulations (Cal. Code
Regs., tit. 15, §§ 3043.3, 3043.4, 3043.5)8 that relate to conduct credits that may be
earned by state prison inmates. We conclude that defendant has failed to establish an
equal protection violation.
       The Fourteenth Amendment to the United States Constitution and article I, section
7, subdivision (a) of the California Constitution both prohibit the denial of equal
protection of the laws. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.) “ ‘The equal
protection guarantees of the Fourteenth Amendment and the California Constitution are
substantially equivalent and analyzed in a similar fashion.’ ” (People v. Lynch (2012)
209 Cal.App.4th 353, 358.)



6 Section 4019 allows inmates incarcerated in county jail to earn “work performance and
good behavior time credit” (i.e., conduct credit) reductions from his or her term of
incarceration on a two-for-two basis--two days credit for every two days of incarceration.
(§ 4019, subd. (f); see also People v. Kennedy (2012) 209 Cal.App.4th 385, 395-396.)
7 Section 2933 allows state prisoners to earn “worktime credit” (i.e., conduct credit)
reductions from his or term of incarceration on a one-for-one basis--one day of credit for
every one day of incarceration. (Id., subds. (a), (b).) Section 2933.05 authorizes
postsentence credit for a prisoner’s successful completion of specific program
performance objectives in approved rehabilitative programming. This credit is in
addition to any credit awarded under section 2933. (Id., subd. (a).) Section 2933.3
provides, among other things, that “any inmate assigned to a conservation camp by the
Department of Corrections and Rehabilitation, who is eligible to earn one day of credit
for every one day of incarceration pursuant to Section 2933 shall instead earn two days of
credit for every one day of service.” (Id., subd. (a).) Section 2935 provides that “the
Secretary of the Department of Corrections and Rehabilitation may grant up to 12
additional months of reduction of the sentence to a prisoner who has performed a heroic
act in a life-threatening situation, or who has provided exceptional assistance in
maintaining the safety and security of a prison.”
8  Defendant relies on sections 3043.3 [milestone completion credit], 3043.4
[rehabilitative achievement credit], and 3043.5 [educational merit credit] of title 15 of the
California Code of Regulations.

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       “ ‘Broadly stated, equal protection of the laws means “that no person or class of
persons shall be denied the same protection of the laws [that] is enjoyed by other persons
or other classes in like circumstances in their lives, liberty and property and in their
pursuit of happiness.” ’ . . . Thus, . . . a threshold requirement of any meritorious equal
protection claim ‘is a showing that the state has adopted a classification that affects two
or more similarly situated groups in an unequal manner. [Citation.]’ [Citation.] ‘This
initial inquiry is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.” ’ ” (People v. Guzman
(2005) 35 Cal.4th 577, 591-592.) “In other words, we ask at the threshold whether two
classes that are different in some respects are sufficiently similar with respect to the laws
in question to require the government to justify its differential treatment of these classes
under those laws.” (People v. McKee (2010) 47 Cal.4th 1172, 1202.) If an equal
protection claim does not satisfy this preliminary requirement, it fails. (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 254.)
       If two groups are sufficiently similar with respect to the law being challenged, we
consider whether disparate treatment of the two groups is justified. (People v. McKee,
supra, 47 Cal.4th at p. 1207.) Unless the law treats similarly situated persons differently
on the basis of race, gender, or some other criteria calling for heightened scrutiny, we
apply the rational basis test, which requires a determination of whether the legislative
classification bears a rational relationship to a legitimate state purpose. (People v.
Moreno (2014) 231 Cal.App.4th 934, 939; see Adams v. Commission on Judicial
Performance (1994) 8 Cal.4th 630, 659 [the heightened strict scrutiny standard of review,
which requires a compelling state interest to justify the disparity, only applies if a
legislative classification involves a suspect classification or significantly infringes upon a
fundamental right].)
       Defendant contends that postconviction county jail inmates are similarly situated
to state prison inmates for purposes of equal protection because both groups are “in state

                                              9
custody in a locked institution.” Defendant further contends that the differential
treatment of these two similarly situated groups with respect to the amount of conduct
credits they may earn while incarcerated implicates the fundamental interest of personal
liberty, thereby requiring a compelling state interest to justify the disparity, which does
not exist. Alternatively, assuming the rational basis test applies, defendant argues that the
differential treatment of the two groups does not rest upon any reasonable basis, and
therefore the disparity violates equal protection principles. Defendant’s showing is
insufficient to establish an equal protection violation.
       The constitutional guaranty of equal protection recognizes that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment, but it
does not require absolute equality; “equal protection does not mandate uniform laws with
respect to different persons or classes. Instead, ‘ . . . the Legislature may make a
reasonable classification of persons and pass special legislation applying to certain
classes. The classification cannot be arbitrary, but must be based on some difference in
the classes having a substantial relation to a legitimate objective to be accomplished.
[Citation.] The presumption is in favor of the classification and will not be rejected
unless plainly arbitrary.’ ” (People v. Eddy (1995) 32 Cal.App.4th 1109.)
       Prior to the Realignment Act, California courts uniformly rejected equal protection
challenges to the different ratios for the calculation of credits used in sections 4019
(county jail inmates) and 2933 (state prison inmates):9 “Numerous cases have held that
various classes of detainees are not similarly situated with respect to the award of conduct



9  As noted, section 4019 currently allows county jail inmates to earn two days of credit
for every two days of incarceration while section 2933 currently allows prison inmates to
earn one day of credit for every one day of incarceration. (§ 4019, subd. (f); § 2933,
subds. (a), (b).) Except for a 10-month period in 2010, section 4019 provided that county
jail inmates could earn conduct credits at a less generous rate before the Realignment
Act, which became effective October 1, 2011. (See People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48-49.)

                                              10
credits. . . . [F]or example, a nonviolent felon earns fewer conduct credits during
presentence confinement in a local detention facility [citations] than he or she does once
sentenced to state prison and enrolled in a qualifying work program [citations]. The
courts have uniformly rejected equal protection claims challenging this disparity, finding
that pretrial detainees and state prison inmates are not similarly situated for purposes of
the statutes [citations], or alternatively that the disparate treatment is justified by the
state’s interest in rehabilitating convicted felons. [Citations]” (People v. Ramos (1996)
50 Cal.App.4th 810, 822 [collecting cases].) “Similarly, the courts have upheld other
statutory schemes which treat detainees differently when it comes to conduct credits.”
(See id. at pp. 823-824 [collecting cases].)
       As a threshold matter, defendant has not demonstrated that the two groups she has
identified--postconviction county jail inmates and state prison inmates--are similarly
situated but treated unequally with respect to the ability to earn conduct credits. She
acknowledges that county jail inmates and state prison inmates may earn the same
amount of conduct credit under the current versions of section 4019, subdivision (f)
(county jail inmates) and section 2933, subdivisions (a) and (b) (state prison inmates); it
is possible for both groups to receive a 50 percent reduction in their sentence. However,
she contends that state prison inmates may earn additional conduct credits that county jail
inmates are unable to earn, citing several Penal Code sections (§§ 2933.05 [credits for
completion of specific program performance objectives in approved rehabilitative
programming], 2933.3 [credits for inmates assigned to conservation camps], 2935 [credit
for heroic acts or exceptional assistance), and state regulations (Cal. Code Regs., tit. 15,
§§ 3043.3 [milestone completion credit], 3043.4 [rehabilitative achievement credit],
3043.5 [educational merit credit]).
       The People do not dispute that state prison inmates may earn more conduct credits
than county jail inmates under the statutes and regulations relied on by defendant but
argue that defendant has failed to establish that county jail inmates are similarly situated

                                               11
to state prison inmates for equal protection purposes. We agree. Defendant makes no
attempt to meet her burden to show that postconviction county jail inmates like her are
similarly situated to state prison inmates with respect to the purposes of the conduct
credit statutes and regulations she relies on. Instead, she merely highlights the disparity
of treatment between the two groups. Her challenge therefore fails because she has not
satisfied the initial requirement for a meritorious equal protection claim. (Cooley v.
Superior Court, supra, 29 Cal.4th at p. 253 [equal protection challenge fails where the
defendant does not satisfy threshold requirement of state classification of two or more
similarly situated groups receiving unequal treatment].)
       But even assuming the two groups identified by defendant are similarly situated
and treated unequally for purposes of equal protection, defendant has not shown that the
disparate treatment is not justified. While personal liberty is a fundamental interest
(People v. Olivas (1976) 17 Cal.3d 236, 251), personal liberty is not at stake in cases
involving conduct credits because the statutes authorizing such credits do not alter the
penalty for any crime; a prisoner who earns no conduct credits merely serves the full
sentence originally imposed. Instead of addressing punishment for past criminal conduct,
the statutes address future conduct in a custodial setting by providing increased incentives
to engage in productive work and maintain good behavior. (See People v. Brown (2012)
54 Cal.4th 314, 325, 327-329; In re Stinnette (1979) 94 Cal.App.3d 800, 805, fn. 4, 806.)
Therefore, the rational relationship test applies. Under that test, we ask whether the
challenged classification bears a rational relationship to a legitimate state purpose or, put
another way, whether there is any reasonably conceivable state of facts that could provide
a rational basis for the classification. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-
482.) Where there are plausible reasons for a classification, our inquiry is at an end.
(People v. Hofsheier (2006) 37 Cal.4th 1185, 1201, overruled on other grounds in
Johnson v. Department of Justice (2015) 60 Cal.4th 871.) Such is the case here.
Defendants sentenced to state prison generally face longer periods of confinement for

                                             12
more serious offenses than defendants sentenced to county jail and face more challenges
in reintegrating into society after detainment. The Legislature could have reasonably
concluded that these categories of inmates differ in their need for rehabilitation and
opportunity to participate in work programs and other programs or activities that promote
the educational, behavioral, or rehabilitative development of an inmate. The Legislature
had a legitimate purpose in motivating state prison inmates to participate in such
programs and activities by allowing them to earn conduct credits for doing so.10
                                      DISPOSITION

       The judgment is affirmed.



                                                        /s/
                                                  Duarte, J.



We concur:



     /s/
Mauro, Acting P. J.




     /s/
Renner, J.




10 Because we have rejected defendant’s equal protection argument on the merits, we
need not and do not address her alternative contention that she received ineffective
assistance based on counsel’s failure to raise an equal protection argument in the trial
court.

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