Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR513462
Siggins, J.
Defendant Luis Samuel Lopez pled no contest to receiving stolen property with an enhancement because his crime was gang related, and the trial court sentenced him to nine months in county jail and three years’ probation. The court ordered defendant to pay assorted fines and a $325 probation report preparation fee, a $250 probation supervision fee, and a $200 public defender fee. In this appeal, defendant contends that the probation fees must be reversed because the court did not provide defendant with notice and an opportunity for hearing as required by Penal Code section 1203.1b. We affirm in part and reverse in part.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
On June 10, 2007, Santa Rosa police arrested defendant for unlawfully receiving stolen property and entering a motor vehicle with the intent to commit larceny and a felony. Defendant negotiated a plea of no contest to unlawfully receiving stolen property with a gang enhancement in return for dismissal of the remaining counts, enhancements, and alleged violations of probation. The plea also provided that defendant’s maximum possible sentence was a three-year prison term and five years’ probation.
The court accepted defendant’s pleas and admissions, found defendant guilty, and referred the matter to probation for the creation of a presentencing report. The probation report reflects that potential terms and conditions of probation were discussed with defendant.
The report materials also included a list of standard probation conditions. Items (48) and (49) on the list were circled and highlighted. Item (48) stated, “[y]ou have been informed of your right to a hearing and counsel and to have the Court determine your ability to pay and the payment amount of the Report Preparation Fee. Having waived that right it is ordered that although not a condition of probation, the defendant will pay a Report Preparation Fee of $325. . . .” Item (49) stated, “[y]ou have been informed of your right to a hearing and counsel and to have the Court determine your ability to pay and the payment amount of the fee for probation supervision. Having waived that right it is ordered that although not a condition of probation, the defendant will pay a Probation Supervision Fee of $250 . . . .”
Item (51) was neither circled nor highlighted. Item (51) stated, “[a]lthough not a condition of probation, the defendant appears to have the ability to ____ pay the cost of legal counsel, pursuant to Section 987.8 PC, in an amount and manner to be determined by the Court. . . .” The record does not otherwise indicate that defendant received notice that he might be ordered to pay all or part of his attorney fees.
Although defendant was unemployed at the time the probation officer prepared the report, for three weeks prior to his arrest defendant worked as a landscaper, and prior to that he worked at Amy’s Kitchen for six months. When employed, defendant earned approximately $1,200 per month. Before his arrest, defendant paid $300 per month in rent and $55 per month in cell phone charges.
At the sentencing hearing on July 25, 2007, defense counsel stated that he had read and reviewed the probation report. The defense submitted a letter to the court, in which defendant stated that he had a possibility of employment during probation. The court added this letter to the probation report. The court imposed a $325 probation report preparation fee, a $250 probation supervision fee, and a $200 public defender fee on defendant. Neither defense counsel nor defendant objected to the imposition of the probation fees.
DISCUSSION
Defendant asserts that the court improperly imposed the probation fees because defendant did not receive notice of his right to a hearing to determine his ability to pay, did not expressly waive that right, and the court imposed the fees without conducting a hearing. We agree, and the People concede, that the public defender fee was improperly assessed and its imposition must be reversed. But we otherwise disagree with defendant and affirm.
I. The Court’s Authority to Impose Fees to Defer the Cost of Probation.
Section 1203.1b authorizes the court to order defendant to pay certain costs of probation, including the cost of any probation supervision or of conducting any presentence investigation and preparing any presentence report. Section 1203.1b, subdivision (a) requires the probation officer to “make an inquiry into the ability of the defendant to pay all or a portion of these costs . . . [and] inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount.” Subdivision (a) also requires that “[t]he defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” If defendant fails to waive that right, the court is to hold a hearing to determine the amount of payment and the manner in which the payments shall be made. (§ 1203.1b, subd. (b).)
In People v. Scott (1994) 9 Cal.4th 331 and People v. Welch (1993) 5 Cal.4th 228, the California Supreme Court established a waiver doctrine that bars defendants from raising sentencing issues for the first time on appeal. In Scott the court summarized the doctrine, “sentencing claims are not exempted per se from an objection requirement and [] defendants cannot challenge the terms of their probation for the first time on appeal.” (People v. Scott, supra, at p. 336.)
In People v. Valtakis (2003) 105 Cal.App.4th 1066, Division Two of this court applied the waiver doctrine of Welch and Scott to the notice and hearing scheme contained in section 1203.1b. (Valtakis, supra, at pp. 1071-1073.) The court found that the “mandatory language” in section 1203.1b “clearly creates an antiwaiver rule at the trial court level . . .[and that] unless [defendant] had made an informed waiver, in connection with his plea change or later, he was entitled to a separate court determination at an evidentiary hearing . . . .” (Valtakis at p. 1074, italics added.) So, limiting the effect of the antiwaiver language of section 1203.1b to the trial court, Division Two of our court held that, “failure to object in the trial court to statutory error in the imposition of a probation fee under section 1203.1b waives the matter for purposes of appeal.” (Valtakis at p. 1072.) We reject defendant’s argument that any lack of notice of the probation fees was a violation of due process. The report states defendant was given notice of the likely terms and conditions of his probation. Thus, his claim centers on a lack of statutory notice, not a lack of due process. (Id. at p. 1071.)
II. The Probation Report Provides a Basis in the Record to Conclude that Defendant Received Sufficient Notice and Waived his Right to a Hearing.
Defendant contends that he did not receive notice of his right to a hearing on his ability to pay, and that he did not expressly waive that right. Defendant’s argument is based upon the assertion that neither defense counsel nor defendant received a list of standard probation conditions, and that the probation officer did not include those conditions in the presentence report provided to counsel. But the record does not establish a lack of notice to defendant.
The probation officer discussed with defendant the possible terms and conditions of his probation. The record shows that defense counsel received a copy of the probation report prior to sentencing. The record also contains a “confidential documents chronological index,” that included the list of standard probation conditions. Items (48) and (49) on that list enumerate defendant’s notice of his right to a hearing to determine ability to pay and that he expressly waived that right. From this evidence in the record, we can infer defendant was provided notice as stated in items (48) and (49). (See § 1203; Evid. Code, § 664.) We may thus conclude defense counsel had notice of defendant’s right to a hearing to determine his ability to pay and the potential waiver of that right. If error existed in the terms of the notice or waiver, defense counsel properly could have objected to such errors at the time of sentencing. (See People v. Scott, supra, 9 Cal.4th at pp. 351-353.)
Even if we were to find that the record lacked affirmative evidence of waiver, defendant’s failure to object would waive his right to a hearing. The purpose of the waiver doctrine is to “encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims . . . [by requiring] parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. . . . [¶] . . . [¶] Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (People v. Scott, supra, 9 Cal.4th at pp. 351-353.) Accordingly, even if no notice or express waiver of the statutory right occurred, it was incumbent upon defense counsel to object to such errors at the time of sentencing. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1072.)
It is defendant’s burden to disprove the evidence that shows he was given notice of his right to a hearing as provided in items (48) and (49) of his terms and conditions of probation. He has not done so. The most defendant states is that the record is “silent on whether the ‘standard conditions’ are routinely supplied to counsel, or were in this case.” In light of the conditions that appear in this record and the recitation in the presentence report that defendant was advised of the possible terms and conditions of probation, defendant’s showing is insufficient.
Section 1203.12 requires probation officers to provide the written conditions of probation to probationers. We have no basis to conclude it was not done in this case. If defendant first learned of his right to a hearing when he received conditions after he was sentenced, he could and should have sought relief in the trial court. (§§ 1203.1b, subd. (c).)
Although Welch and Scott recognize an exception to the waiver doctrine for “unauthorized sentences,” that exception is limited to cases involving pure questions of law where the trial court may have imposed a sentence beyond its legal authority. (People v. Welch, supra, 5 Cal.4th at p. 236; People v. Scott, supra, 9 Cal.4th at pp. 354-355.) Scott clarified that, “a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case. Appellate courts are willing to intervene . . . because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (Scott, supra, at p. 354.) Here, irrespective of possible lack of notice and waiver, the unauthorized sentence exception does not apply because the probation fees, even if imposed in a procedurally flawed manner, are not otherwise illegal. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1072.)
Were we to consider the defendant’s ability to pay the imposed fees, we would also find there was no prejudice to defendant. The record shows that defendant was employed for over six months prior to his arrest, and that during that time he made approximately $1,200 per month and had $355 per month of living expenses. The record shows that defendant also had a possibility of employment during probation, and that at sentencing defendant faced approximately seven months of jail time. Accordingly, even in light of the $550 in other fees imposed on defendant, it is not reasonably likely that the outcome would have been different had the court held a separate hearing on defendant’s ability to pay. Should defendant’s ability to pay change during the probationary period, the trial court may amend the fees orders accordingly, and defendant may not initially seek adjustment by appellate review. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.)
III. Attorney Fees
Defendant is correct in arguing that the order directing him to pay a $200 public defender fee must be reversed. Section 987.8, subdivision (f) requires that, “[p]rior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost.”
There is no evidence in the record from which we can conclude that defendant received any notice at the time he was provided counsel that he might be ordered to pay all or part of his attorney fees or that he was notified of his right to a hearing before the court could order him to pay attorney fees. Defendant argues, and the People concede, that the failure to give notice did not comply with section 987.8. We agree. Because defendant had no notice at a meaningful time that the public defender’s fees could be imposed following a hearing, the public defender’s fee order shall be reversed.
DISPOSITION
The $200 public defender fee imposed upon defendant is reversed, and in all other respects the judgment is affirmed.
We concur: McGuiness, P.J. Jenkins, J.