Filed 8/2/13 P. v. Ferris CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056284

v.                                                                       (Super.Ct.No. FCH1100605)

JEFFREY WADE FERRIS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Stanford E.

Reichert, Judge. Affirmed in part; reversed in part.

         Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.




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         A jury found defendant and appellant Jeffrey Wade Ferris guilty of battery on a

nonconfined person by a prisoner. (Pen. Code, § 4501.5.)1 A trial court found that

defendant had served a prior prison term. (§ 667.5, subd. (b).) The court sentenced him

to a total of four years in state prison and granted him 54 days of presentence custody

credit. It also found that he had the ability to pay appointed counsel fees in the amount of

$500, ordered him to pay such fees, and imposed a $240 victim restitution fine and a

$240 parole revocation restitution fine (stayed pending successful completion of parole).

         On appeal, defendant contends: (1) there was insufficient evidence to support his

conviction; (2) the trial court erred when imposing the order for payment of appointed

counsel fees; and (3) the court‟s imposition of $240 for a restitution fine and a parole

revocation restitution fine under sections 1202.4 and 1202.45 violated the ex post facto

clause. The People concede and, we agree, that the court erred in imposing the order to

pay appointed counsel fees. In all other respects, we affirm the judgment.

                                  FACTUAL BACKGROUND

         Prosecution Evidence

         On July 15, 2011, defendant was an inmate at the Chino Institute for Men. Officer

Jada Crockett was on duty that morning, supervising the inmates at breakfast. After

breakfast, the inmates received sack lunches on their way out of the building. As

defendant passed Officer Crockett, he mumbled something to her. Sergeant Tommy

Ramos observed defendant grab his sack lunch, and state to Officer Crockett, in a loud

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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manner, “What? You‟re not . . . talking to me today?” Sergeant Ramos called defendant

to the side to ask why he yelled out for no apparent reason. Defendant turned toward

Sergeant Ramos, cursed at him, and threw his sack lunch overhand at him. Sergeant

Ramos was standing about seven feet away, and the sack lunch struck him in the face.

Officer Crockett drew her baton, and Sergeant Ramos ordered defendant to “get down.”

When defendant would not comply, Sergeant Ramos sprayed him with pepper spray.

Sergeant Ramos suffered swelling and a scratch under his left eye from the sack lunch.

       Defense Evidence

       Defendant testified on his own behalf. He said that someone criticized his

appearance, so he said, “F--- you.” Sergeant Ramos called defendant, but defendant

ignored him. Officer Crocket said, “He‟s talking to you.” Defendant walked back until

he was about three and one-half feet away from Sergeant Ramos, and Ramos said, “What

did you say to me?” Defendant said, “F--- you.” Officer Ramos got out his pepper spray

and started spraying defendant. Defendant used his sack lunch to protect his face from

the pepper spray. Defendant denied throwing his sack lunch at Sergeant Ramos.

                                        ANALYSIS

          I. There Was Sufficient Evidence to Support Defendant‟s Conviction

       Defendant contends that there was insufficient evidence to support his conviction

of battery on a nonconfined person by a prisoner. He specifically claims that “it was

unlikely that in the quickness of the events that transpired, and the close proximity of

those involved, [he] would have [had] the opportunity to throw the sack lunch in an

overhand manner.” We disagree.


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       A. Standard of Review

       “In assessing the sufficiency of the evidence, we review the entire record in the

light most favorable to the judgment to determine whether it discloses evidence that is

reasonable, credible, and of solid value such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is

unwarranted unless it appears „that upon no hypothesis „whatever is there sufficient

substantial evidence to support [the conviction]. [Citation.]” (People v. Bolin (1998) 18

Cal.4th 297, 331.)

       B. The Evidence Was Sufficient

       Section 4501.5 provides that, “[e]very person confined in a state prison of this

state who commits a battery upon the person of any individual who is not himself a

person confined therein shall be guilty of a felony and shall be imprisoned in the state

prison for two, three, or four years, to be served consecutively.” The jury was instructed

that the People had to prove that: (1) defendant willfully touched Sergeant Ramos in a

harmful or offensive manner; (2) when defendant acted, he was serving a sentence in a

California state prison; and (3) Sergeant Ramos was not serving a sentence in state

prison. The jury was further instructed that the touching could be done indirectly by

causing an object to touch the other person.

       The evidence here clearly showed that defendant touched Sergeant Ramos in a

harmful or offensive manner. Both Sergeant Ramos and Officer Crockett testified that

defendant threw his sack lunch at Sergeant Ramos. Officer Crockett testified that “[i]t

was as if he was gonna throw a—a baseball.” Sergeant Ramos testified that defendant


                                               4
threw the sack lunch “[w]ith an overhand throw like a pitcher with authority,” and it

struck him on the left side of his face.

       Defendant contends that it was “unlikely” that he threw the sack lunch at Sergeant

Ramos, in the manner described. Rather, “[i]t was more reasonable to assume” that he

was reacting to Officer Crockett withdrawing her baton and Sergeant Ramos using his

pepper spray, and that he just raised the sack lunch to protect his face. However, the jury

did not believe defendant‟s testimony, and we cannot reweigh the evidence. (People v.

Little (2004) 115 Cal.App.4th 766, 771.)

       Since defendant‟s conviction is supported by substantial evidence, we must accord

due deference to the trier of fact. (People v. Snow (2003) 30 Cal.4th 43, 66.) We

conclude that there was sufficient evidence to support defendant‟s conviction.

        II. The Trial Court Erred in Ordering Defendant to Pay Appointed Counsel Fees

       Defendant argues that the order requiring him to pay $500 in appointed counsel

fees must be stricken because the court failed to make a determination of his ability to

pay. He further contends that there was insufficient evidence to support any such

determination. The People correctly concede.

       The court ordered defendant to pay appointed counsel fees in the amount of $500.

It did not cite the statutory basis of the order, but we assume the basis was section 987.8,

subdivision (b). That section “authorizes the court to order criminal defendants to pay all

or part of the cost of their appointed counsel after the trial court determines the defendant

has a present ability to pay. The ability to pay includes the defendant‟s reasonably

discernible future financial position, limited to the next six months.” (People v. Lopez


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(2005) 129 Cal.App.4th 1508, 1537 (Lopez), fn. omitted; see also § 987.8, subd. (b).) We

note that section 987.8, subdivision (g)(2)(B), provides: “Unless the court finds unusual

circumstances, a defendant sentenced to state prison shall be determined not to have a

reasonably discernible future financial ability to reimburse the costs of his or her

defense.” (Italics added.)

       As a result of defendant‟s conviction, he was sentenced to prison for four years.

The court made no finding on defendant‟s ability to pay, or of unusual circumstances

pursuant to section 987.8, subdivision (g)(2)(B). Furthermore, as the People concede, the

record does not support an implied finding of unusual circumstances.

       We conclude that the order for defendant to pay attorney fees must be reversed.

   III. The Trial Court‟s Imposition of $240 for the Restitution and Parole Revocation

                  Restitution Fines Was a Proper Exercise of Discretion

       Defendant claims that when the court imposed restitution and parole revocation

restitution fines in the amount of $240, it applied the version of section 1202.4 that had

become effective on January 1, 2012. However, since defendant committed his crime

three months before this amended law took effect, the fines were an ex post facto

violation and should be reduced to $200 each. He further claims that his failure to object

to the fines did not forfeit the issue on appeal because the fines were unauthorized. We

disagree.

       When defendant committed his offense in July 2011, the minimum restitution fine

under section 1202.4, subdivision (b), was $200. (Former § 1202.4.) This statute was

amended effective January 1, 2012, and the minimum fine was increased to $240.


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(§ 1202.4.) Defendant argues that the $240 restitution and parole revocation restitution

fines were not authorized by the versions of section 1202.4 and 1202.45 that were in

effect at the time of his crime. However, the trial court had the discretion to impose a

restitution fine ranging from $200 to $10,000 in 2011, and the $240 fine was well within

that range. (Former § 1202.4.) Thus, while the prohibition against ex post facto laws

applies to restitution fines (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248), the

trial court could have imposed a $240 restitution fine in 2011. Thus, it was not an

unauthorized sentence.

       Furthermore, defendant raised no objection in the trial court to the amount of the

fines. Defendant claims that even though his trial counsel did not object, the error is

cognizable on appeal because the imposition of the fines was unauthorized. However, as

discussed, the $240 amount was authorized; thus, defendant forfeited his right to

challenge the $240 restitution amount by failing to object below. (People v. Garcia

(2010) 185 Cal.App.4th 1203, 1218.)




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                                     DISPOSITION

      The order to pay appointed counsel fees is reversed. In all other respects, the

judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                              HOLLENHORST
                                                                        Acting P. J.


We concur:


McKINSTER
                         J.


RICHLI
                         J.




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