Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF025346, Mark Mandio and Thomas H. Cahraman, Judges. Affirmed as modified.
Judge Mandio denied defendant’s motion to dismiss, and Judge Cahraman made the remainder of the contested rulings.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
On October 19, 2007, defendant believed his wife was cheating on him with another man. When she returned home from work late that night, he threw her to the ground and proceeded to kick and hit her. He then took a pair of scissors and cut her neck.
Defendant pleaded guilty to corporal injury to a spouse with a great bodily injury enhancement and making criminal threats.
Defendant now claims as follows:
1. The trial court erred by denying defendant’s motion to dismiss the charges for lack of a speedy trial pursuant to Penal Code section 1382.
2. Reversal of his sentence is required due the trial court’s failure to order a probation report or obtain a waiver of the report from defendant.
3. The trial court improperly imposed booking fees under Government Code section 29550.2 without finding defendant had an ability to pay the fees.
We affirm the judgment but strike the $110 booking fee imposed pursuant to Government Code section 29550.2.
I
PROCEDURAL BACKGROUND
On August 22, 2008, after an information was filed, defendant pleaded guilty to one count of willful infliction of corporal injury to a spouse (Pen. Code, § 273.5) with the special allegation that he caused great bodily injury (§ 12022.7, subd. (e)). He also pled guilty to one count of making criminal threats (§ 422). In exchange, charges of kidnapping (§ 207, subd. (a)) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), were dismissed.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant, based on the negotiated plea agreement, was sentenced to the low term of two years on the corporal injury to a spouse, plus three years for the great bodily injury enhancement, for a total prison sentence of five years. Sentence on the criminal-threats charge was ordered to run concurrent to the imposed sentence. Several fines and fees were imposed, including a booking fee of $110 pursuant Government Code section 29550.2. Defendant’s request for a certificate of probable cause was denied, but he filed a timely notice of appeal.
II
Since defendant pleaded guilty, we derive the statement of facts from the preliminary hearing.
On October 19, 2007, at 11:52 p.m., Riverside County Sheriff’s Department Deputy Robert Thomas was dispatched to the Inland Valley Hospital regarding a domestic violence dispute. Farrah Beach, a nurse at the hospital, treated Jane Doe, defendant’s wife, for a broken right wrist; facial bruising; lacerations to her neck and face; and bruises on her shoulders, arms, knees, and back.
Deputy Thomas observed Doe’s injuries, including the cuts to her face, the cast on her wrist, and several bruises. Doe told Deputy Thomas that when she arrived home from work about 7:00 p.m. that night, she was confronted by defendant, who accused her of cheating on him. Doe denied the accusations. Defendant shoved Doe to the ground and kicked her in the buttocks. Defendant took a Swiss army knife out of his pocket and put the scissor portion to her neck. He then cut her on the neck. Defendant forced Doe into the car, and he drove to the house of the person with whom he suspected Doe was cheating on him. While they drove, he hit her several times in the arm. Defendant said to her, “I have the balls to kill you. I will kill you.”
Deputy Thomas also spoke with defendant. Defendant told Deputy Thomas that he received a call from one of Doe’s coworkers who told him that Doe was cheating on him. Although Doe denied it, defendant did not believe her. He admitted he threw Doe to the ground, kicked her, and threatened her with the Swiss army knife.
III
DENIAL OF MOTION TO DISMISS UNDER SECTION 1382 AND REQUEST TO WITHDRAW GUILTY PLEA
Defendant contends that the trial court erred by denying his motion to dismiss prior to the entry of his guilty plea because his speedy trial rights had been violated under section 1382. In the alternative, he contends that, if this court does not dismiss the charges, he is entitled to withdraw his guilty plea, as he did not knowingly and intelligently enter into it. Since defendant failed to obtain a certificate of probable cause, we will not review his claims.
Since we do not review the claims, we need not set forth the factual background on the motion to dismiss and motion to withdraw his plea. Further, we also deny defendant’s request for judicial notice filed on August 19, 2009, as it is not pertinent for the resolution of the claims on appeal.
Although not addressed by the People, defendant’s request for a certificate of probable cause was denied by the trial court. Defendant claims that the trial court issued a certificate of probable cause on February 6, 2009, but his citation to the record does not support his assertion. Defendant filed an amended notice of appeal, but the record does not include a granted certificate of probable cause.
Section 1237.5 states broadly that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
A defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea. (People v. Ribero (1971) 4 Cal.3d 55, 62, superceded by statute on other grounds in In re Chavez (2003) 30 Cal.4th 643, 656.) Here, to the extent defendant seeks review of the denial of his motion to withdraw the guilty plea as ruled on by the trial court, he failed to secure a certificate of probable cause as required.
Further, to the extent he is arguing that he should be entitled to withdraw his guilty plea, if we find the charges should not be dismissed, on the ground that his plea was not knowingly and intelligently made on the waiver of his speedy trial rights, again that issue requires a certificate of probable cause. “If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause. [Citation.]” (People v. Emery (2006) 140 Cal.App.4th 560, 565.)
Additionally, even if defendant had obtained a certificate of probable cause in order to contest the trial court’s denial of his motion to dismiss on his speedy trial rights, such certificate would not have allowed review of the issue on appeal, as he waived it by pleading guilty. “[T]he cases are virtually uniform in holding that a claim of speedy trial violation whether statutory or constitutional does not survive a guilty plea. [Citations.]” (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1357 [Fourth Dist., Div. Two]; see also People v. Hayton (1979) 95 Cal.App.3d 413, 419.) “Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty. [Citation.]” (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) Defendant’s claim that the trial court erred by denying his motion to dismiss under section 1382 is not reviewable here because it did not survive his guilty plea. Further, since defendant has failed to make a persuasive argument on appeal that would cause us to decide contrary to our decision in Hernandez, defendant’s claim fails.
Under section 1237.5, defendant’s appeal would be dismissed if this were the only ground raised on appeal. (See People v. Mendez (1999) 19 Cal.4th 1084, 1099.) A defendant is “not required to comply with the provisions of section 1237.5 where... he is not attempting to challenge the validity of his plea of guilty but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Ward (1967) 66 Cal.2d 571, 574.) We address defendant’s remaining two issues, post,regarding the failure to obtain a probation report and the imposition of booking fees and whether they are properly reviewed here.
V
FAILURE TO ORDER PROBATION REPORT
Defendant contends that the trial court erred by failing to order that a probation report be prepared prior to sentencing. He insists that remand for preparation of the probation report and resentencing is necessary.
Defendant’s claim is essentially an attack on the validity of the plea, for which a certificate of probable cause is necessary. “In determining whether section 1237.5 applies to a challenge to a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) “[W]here the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause.” (People v. Buttram (2003) 30 Cal.4th 773, 783.)
In this case, defendant’s five-year prison sentence was a negotiated term of the plea agreement; therefore, there were no issues left open for resolution regarding the imposed sentence. Defendant seeks reversal for preparation of the probation report either to have the trial court reconsider the plea itself or to reconsider its determination on the motion to dismiss. Either way, it is an attack on the plea itself, requiring a certificate of probable cause, which, as we have stated, ante,defendant failed to obtain.
Even if defendant had obtained a certificate of probable cause, no error occurred here. Section 1203, subdivision (b)(1) provides, in pertinent part, “[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of punishment.” (Italics added.)
A probation report in this case was not mandated, as defendant agreed he was ineligible for probation. (See People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432 [since defendant ineligible for probation due to his strike probation report was discretionary]; People v. Llamas (1998) 67 Cal.App.4th 35, 39-40 [same].) Defendant never asked the trial court to prepare the probation report prior to sentencing and acknowledged when entering into the plea that he was ineligible for probation. An argument that such waiver was invalid or that he was in fact eligible for probation is again an attack on the validity of the plea that cannot be considered here. As such, we cannot find that the trial court erred by failing to order a probation report in this case.
V
BOOKING FEES UNDER GOVERNMENT CODE SECTION 29550.2
Defendant contends the booking fees imposed under Government Code section 29550.2 must be stricken because the trial court did not make an assessment of his ability to pay the fees as required by the statute. This is the only noncertificate ground raised in the appeal.
At the time of sentencing, the trial court imposed a $110 booking fee pursuant to Government Code section 29550.2. There was no objection by defendant. The People maintain that defendant waived any objection to the booking fee by failing to object in the lower court because the resulting sentence is not an unauthorized sentence, citing to People v. Scott (1994) 9 Cal.4th 331. Defendant responds that he can raise the issue on appeal for the first time, as the determination of booking fees presents an insufficient-evidence claim that cannot be waived.
Government Code section 29550.2, subdivision (a) requires that a defendant pay his booking fee. It provides in pertinent part, “If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person....” Here, the trial court did not have a probation report and did not at any time address whether defendant could afford to pay the booking fee.
We note that there is conflicting authority on the issue of whether the failure to object to an imposed fee based on the trial court’s failure to make a determination of an ability to pay waives the issue on appeal. It has been found by some courts that the failure to object to booking fees waives the issue on appeal. “[B]ecause the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citations.]” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; see also People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 and cases cited therein.)
However, other courts have found that a challenge to a defendant’s ability to pay attorney fee reimbursement need not be raised below because it is essentially a challenge to the sufficiency of the evidence to support the trial court’s order. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
The People have failed to make any argument attempting to distinguish Lopez, which was cited by defendant in his opening brief. We will not make the argument for the People. As such, we accept defendant’s argument. We will strike the booking fee as suggested by the People. We will also order that the minute order from sentencing and the abstract of judgment be modified.
VI
DISPOSITION
We modify the judgment to strike the $110 booking fee imposed by the trial court pursuant to Government Code section 29550.2. We order the trial court to modify the minute order dated January 30, 2009, to strike the booking fee. In addition, the trial court shall amend the abstract of judgment to strike the booking fee and forward an amended abstract of judgment to the California Department of Corrections and Rehabilitation. We otherwise affirm the judgment.
We concur: RAMIREZ P.J., McKINSTER J.