People v. Bowermaster CA2/6

Filed 2/10/14 P. v. Bowermaster 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B250351

(Super. Ct. No. M465853) Plaintiff and Respondent, (San Luis Obispo County) v. CHARLES EUGENE BOWERMASTER,

Defendant and Appellant.

Charles Eugene Bowermaster appeals the judgment entered after he pled no contest to driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). Appellant also admitted allegations that he had suffered three prior convictions for driving under the influence (Veh. Code, § 23152, subd. (b)) and two prior strike convictions (Pen. Code,1 §§ 667, subds. (d), (e), 1170.12, subds. (b), (c)), and had served four prior prison terms (§ 667.5, subd. (b)).

Appellant was initially deemed incompetent to stand trial. On December 23, 2011, he was committed to Atascadero State Hospital (ASH) for treatment pursuant to section 1370, subdivision (a)(1)(B)(i).2 On June 14, 2012, ASH's medical director issued a certification of appellant's mental competency in accordance with section 1372. After appellant waived his rights to a preliminary hearing and trial and pled no contest, 3 the trial court sentenced him to five years in state prison and awarded him 1,034 days presentence custody credit under section 4019. Appellant was also ordered to pay a $1,000 restitution fine (§ 1202.4, subd. (b)) and other various statutory fines and fees.

We appointed counsel to represent appellant in this appeal. After examining the record, counsel filed an opening brief raising no issues. On December 12, 2013, we advised appellant that he had 30 days to personally submit any contentions he wished us to consider. In a timely response, appellant contends he is entitled to presentence custody credit in accordance with People v. Bryant (2009) 174 Cal.App.4th 175 (Bryant). He also claims the court erred in ordering him to pay a $1,000 restitution fine. Although defense counsel did not object to the fine, appellant claims that counsel was about to do so when the court "cut him off and made [appellant] set [sic] down and shut up."

Appellant fails to demonstrate either error of which he complains. The defendant in Bryant, like appellant, was initially declared incompetent to stand trial and was committed for treatment to restore his competency. The Court of Appeal concluded the defendant was entitled to section 4019 credits as of the date state hospital staff prepared and served a report stating that his competency had been restored, rather than the subsequent date the medical director's designee executed and served a section 1372

Appellant was awarded section 4019 credits as of June 14, 2012, which is the date the section 1372 certification of his mental competency was executed by ASH's Medical Director, Dr. Thomas G. Cahill, and Forensic Services Director David K. Fennel, M.D. Appellant asserts that pursuant to Bryant, he should have been awarded credits as of June 8, 2012, which he characterizes as the date ASH staff prepared its report stating that appellant's competency had been restored. Although the record reflects that the report was dated June 8, 2012, Dr. Fennel did not sign off on the report until June 15, 2012, the day after he and Dr. Cahill executed their section 1372 certification of appellant's competency. Because the record demonstrates that appellant was not "unanimously found by [all] staff members to be restored to competency" until June 14, 2012, section 4019 credits were correctly awarded as of that date. (Bryant, supra, 174 Cal.App.4th at p. 184.)

Appellant also fails to demonstrate the court erred in ordering him to pay a $1,000 victim restitution fine without considering his inability to pay. Even assuming that appellant's statement, "I'm not going to have any money to pay anything," is sufficient to preserve the claim or that the court otherwise prevented appellant or his attorney from objecting to the fine, appellant "points to no evidence in the record supporting his inability to pay, beyond the bare fact of his impending incarceration. Nor does he identify anything in the record indicating the trial court breached its duty to consider his ability to pay; as the trial court was not obligated to make express findings concerning his ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion." (People v. Gamache (2010) 48 Cal.4th 347, 409.)

We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Wende (1979) 25 Cal.3d 436, 443.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

Barry T. LaBarbera, Judge Superior Court County of San Luis Obispo ______________________________

California Appellate Project, Jonathan B. Steiner, Richard B. Lennon, under appointment by the Court of Appeal; Charles Bowermaster, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.