Opinion
E064736
04-24-2017
THE PEOPLE, Plaintiff and Respondent, v. BILAL AHMAD, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1402961) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
After a jury found defendant Bilal Ahmad guilty of first degree burglary and receiving stolen property, defendant admitted allegations that he suffered a prior strike conviction and prior serious felony conviction, and served two prior prison terms (collectively, "prior conviction allegations"). The trial court sentenced defendant to 17 years in prison.
Respectively, Penal Code section 459 (count 1); and section 496, subdivision (a) (count 2). Unless otherwise noted, all statutory references are to the Penal Code.
Sections 1170.12, subdivisions (a)-(d), 667, subdivisions (b)-(i) (strike).
Section 667, subdivision (a)(1).
Section 667.5, subdivision (b) (prison prior).
Defendant appeals the judgment. He contends the trial court violated his constitutional due process rights by accepting his admissions to the prior conviction allegations without fully advising him of his constitutional rights and the penal consequences of admitting the enhancement allegations. Defendant also contends the trial court erred in ordering him to reimburse attorney fees for his appointed counsel in violation of section 987.8.
We reject defendant's contention the trial court committed reversible error in accepting defendant's admission of the prior conviction allegations. We also conclude that, because defendant did not raise in the trial court his objection to the attorney fees order, he forfeited it. The judgment is therefore affirmed.
II
FACTS
During the evening of June 14, 2014, defendant entered a residence without the owners' consent, while the owners (victims) were gone. The victims' next-door neighbor saw someone jumping over the fence into her backyard, from the victims' backyard. The neighbor then saw the person, along with another individual, run toward the front of her house. She heard car doors shut and saw a vehicle's taillights as the vehicle drove away. That same evening, a neighbor who lived nearby, saw a man walking in the middle of the street. A dark-colored van pulled over, picked up the man, and drove away.
When the victims returned home, they discovered about $3,000 in personal property was missing. The victims' in-home video surveillance showed the perpetrators at the front door and back patio. The video surveillance also showed the perpetrators' van in front of the victims' home at the time of the burglary. The van was registered to defendant. His driver's license photograph matched the appearance of one of the individuals shown in the in-home video surveillance. Items stolen from the victims' home were found on defendant, in his vehicle, and at his home.
III
FAILURE TO ADVISE DEFENDANT OF HIS TRIAL RIGHTS
BEFORE ADMISSION OF HIS PRIORS
Defendant elected a bifurcated court trial on the prior conviction allegations. When the matter was called for a court trial on the priors, defense counsel told the court that defendant would admit a strike prior allegation. Defendant then admitted not only the strike prior allegation, but the other prior conviction allegations as well. Beforehand, the court did not advise defendant of his constitutional rights or of the penal effect of admitting the prior conviction allegations (Boykin/Tahl rights).
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
Citing In re Yurko (1974) 10 Cal.3d 857 (Yurko), People v. Howard (1992) 1 Cal.4th 1132 (Howard), and People v. Cross (2015) 61 Cal.4th 164 (Cross), defendant contends the trial court committed reversible error by accepting his admissions of prior conviction allegations without first advising him of his constitutional rights subject to waiver and the consequences of the admissions (Yurko error). Defendant argues his admissions therefore were not made knowingly, intelligently, or voluntarily. A. Standard of Review
The court in Howard, supra, 1 Cal.4th 1132, clarified the standard of review applicable to an objection to the trial court failing to give a defendant proper Boykin/Tahl admonitions before the defendant admits a prior conviction allegation (Yurko error). The Howard court held that Yurko error is not reversible per se. (Howard, supra, 1 Cal.4th at pp. 1174-1180; Cross, supra, 61 Cal.4th at p. 171.) Rather, the test for reversal is whether the record as a whole affirmatively shows that admission of a prior conviction allegation was voluntary and intelligent under the totality of the circumstances. (Cross, at p. 171; Howard, at p. 1175.) The Howard court noted that the trial courts are still required to expressly advise defendants on the record of their Boykin/Tahl rights. But errors in the articulation and waiver of those rights shall require the admission to be set aside only if the admission of priors fails the federal test. (Howard, at p. 1175.) In Howard, the court concluded that the federal test does not require specific articulation of each of the three rights waived by a guilty plea or admission of a prior conviction admission, as long as it is clear from the record that the plea or admission of priors was voluntary and intelligent. (Howard, at pp. 1178-1179.) B. Forfeiture of Objection to Trial Court Not Advising Defendant of the Penal Consequences of Admitting Priors
The People argue defendant forfeited his objection that the trial court failed to advise him of the penal consequences of admitting the prior conviction allegations. Advisement of the penal consequences of admitting a prior conviction allegation is not constitutionally mandated. Instead, it is a judicially declared rule of criminal procedure. (Cross, supra, 61 Cal.4th at pp. 170-171; People v. Wrice (1995) 38 Cal.App.4th 767, 770; Yurko, supra, 10 Cal.3d at p. 864.) "Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing." (Wrice, at pp. 770-771.)
Here, if there was such error in not advising defendant of the penal consequences of admitting the prior conviction allegations, it was not the only error. Defendant also contends the trial court failed to properly advise him of his constitutional rights before he admitted the prior conviction allegations. The trial court did not advise defendant of his privilege against self-incrimination or his right to confront his accusers. The court also did not advise defendant of his right to a court trial, although the court did advise defendant of his right to a jury trial of his prior conviction allegations, which defendant elected to forego in favor of a court trial. Because defendant received incomplete advisements of his rights, this court must determine whether defendant's admission of his priors was voluntary and intelligent. (Cross, supra, 61 Cal.4th at p. 173, quoting People v. Vera (1997) 15 Cal.4th 269, 280 [the defendant "cannot forfeit his claim that the trial court should have ensured his stipulation was voluntary and knowing by advising him of his right to 'a fair determination of the truth of the prior [conviction] allegation.'"].)
Defendant's objection to the trial court failing to advise defendant of the consequences of his admissions has not been forfeited because it is relevant to, and will be considered in the context of determining whether defendant's admissions of the prior conviction allegations were voluntary and knowing, in the absence of being fully advised of his constitutional rights. (People v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby).) C. Whether Defendant's Prior Admissions Were Voluntary and Intelligent
Before a defendant admits a prior conviction allegation, the trial court is required to fully advise the defendant of (1) the defendant's constitutional rights subject to waiver (self-incrimination, confrontation, and jury trial) and (2) the full penal effect of a finding of the truth of a prior conviction allegation. (Yurko, supra, 10 Cal.3d at p. 865; Howard, supra, 1 Cal.4th at pp. 1175-1176.) The second advisement requires that the accused "must be advised of the precise increase in the prison term that might be imposed, the effect on parole eligibility, and the possibility of being adjudged an habitual criminal." (Cross, supra, 61 Cal.4th at p. 171; Yurko, at p. 864.) The prophylactic purpose of providing the advisements before a defendant admits the truth of a prior conviction allegation is to help ensure that the constitutional standards of voluntariness and intelligence are met. (Cross, at p. 173.)
"The failure to properly advise a defendant of his or her trial rights is not reversible 'if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.'" (Cross, supra, 61 Cal.4th at p. 179, quoting Howard, supra, 1 Cal.4th at p. 1175.) In making such a determination, this court must consider the whole record, not just the record of the plea or prior admission colloquy. (Cross, at p. 180; Mosby, supra, 33 Cal.4th at p. 361.)
In Howard, the trial court provided an incomplete advisement of the defendant's constitutional rights. Before the defendant in Howard admitted a prison prior (§ 667.5, subd. (b)), the trial court advised the defendant of his rights to confrontation and a jury trial, but failed to advise the defendant of his privilege against self-incrimination. The court in Howard nevertheless affirmed the prison prior finding, concluding the defendant's admission was voluntarily and intelligently made. (Howard, supra, 1 Cal.4th at p. 1180.)
The court in Mosby, supra, 33 Cal.4th 353, emphasized that under Yurko, supra, 10 Cal.3d 857 and Howard, supra, 1 Cal.4th 1132, "if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances." (Mosby, at p. 361.) The Mosby court acknowledged that reversal is proper when the record is completely silent as to whether the defendant admitted a prior conviction knowingly and intelligently. (Id. at p. 362.) In Mosby, as in the instant case, the court advised the defendant of his right to a jury trial on a prior but did not advise the defendant of his rights to silence and confrontation. Applying the Howard totality of the evidence test, the Mosby court held that the defendant voluntarily and intelligently admitted his prior conviction even though the trial court did not advise defendant of his rights to silence and confrontation. (Mosby, at p. 365.)
The Mosby court based its holding on the following factors: the defendant admitted the prior immediately after a jury found him guilty of the underlying charge; the defendant was told he had a right to a jury trial on the prior conviction allegation; the defendant waived his jury trial right and then admitted the prior; and the defendant was represented by counsel. The court in Mosby stated that, because the defendant had just had a jury trial, "he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had" committed the charged crime. (Mosby, supra, 33 Cal.4th at p. 364.) "And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Ibid.)
The Mosby court also took into consideration the defendant's experience with the judicial system, noting that "[a] review of the entire record also sheds light on defendant's understanding. For instance, 'a defendant's prior experience with the criminal justice system' is, as the United States Supreme Court has concluded, 'relevant to the question [of] whether he knowingly waived constitutional rights.' [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivist's '"knowledge and sophistication regarding his [legal] rights."' (Parke[ v. Raley (1992) 506 U.S. 20, 36-37; see United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-1111 [the defendant, who had received full advisements in state court action two months before he entered a guilty plea on incomplete advisements in federal court, knowingly waived rights of confrontation and silence despite lack of advisement on either].)" (Mosby, supra, 33 Cal.4th at p. 365.)
Here, as in Howard and Mosby, supra, 33 Cal.4th 353, the trial court gave an incomplete notice of defendant's constitutional rights. We must therefore look to the record as a whole to determine whether defendant's admissions of the prior conviction allegations were voluntary and intelligent. (Howard, supra, 1 Cal.4th at pp. 1178-1179; Cross, supra, 61 Cal.4th at p. 179.) The record shows several instances in which defendant was advised of his constitutional rights. One occasion was right after the prosecution rested its case, when the trial court advised defendant of his privilege against self-incrimination: "THE COURT: . . . I just want to make sure that you understand your options. Mr. Ducre [defense counsel] has indicated off the record that you're wishing to not take the stand; is that correct? "THE DEFENDANT: That's correct, your Honor. "THE COURT: You understand that you have a constitutional right to testify if you choose to? "THE DEFENDANT: Yes, your Honor. "THE COURT: And you have a constitutional right not to testify if you choose to. "THE DEFENDANT: Yes. "THE COURT: Have you discussed those matters with your attorney? "THE DEFENDANT: Yes, I have, your Honor. "THE COURT: Do you have any questions about your rights? "THE DEFENDANT: No, I don't."
The court thereafter also advised defendant of his constitutional right to a jury trial on the prior conviction allegations: "THE COURT: You also have a constitutional right to have a jury trial to decide the issues of the priors that have been alleged should the jury return guilty verdicts. [¶] My understanding is you're wishing to elect a court trial; is that correct? "THE DEFENDANT: That's correct, your Honor. "THE COURT: Mr. Ducre, you join in both of those? "MR. DUCRE: Yes, your Honor.
After the jury found defendant guilty of both criminal counts and the jury was discharged, the trial court granted defense counsel's request for a two-week continuance of the court trial on the priors. When the trial on defendant's priors was scheduled to begin, defendant admitted his priors without any court advisement of his trial rights, as follows: "THE COURT: This is the time and place for the court trial on the priors. Mr. Ducre, I understand at this time, the trial itself might not be necessary? "MR. DUCRE: That is correct, your Honor. After reviewing the documentation on the priors and further examination, the defendant will admit the strike prior. "THE COURT: Mr. Ahmad, with respect to the priors, there is one prior alleged pursuant to Penal Code section 1170.12(a) through (d), 667(i), that you suffered a conviction under case number FWV 1201057 for first degree residential burglary with a conviction date on or about July 24th, 2012, out of San Bernardino County. [¶] Do you admit that? "THE DEFENDANT: Yes, your Honor. "THE COURT: All right, sir. There's also two priors alleged pursuant to Penal Code section 667.5(b), that you suffered time in state prison under case number FWV 1201057. That's that first degree burglary we were talking about, Penal Code section 459, with a conviction date on or about July 24th, 2012. [¶] Do you admit that, sir? "THE DEFENDANT: Yes, your Honor. "THE COURT: Do you also admit the prior under case number SCE 257319, violation of Penal Code section 273.5(a), also Penal Code section 12020, with a conviction date on or about January 12th, 2006, out of San Diego County? "THE DEFENDANT: Yes. "THE COURT: Also, sir, do you admit the prior conviction under 667(a)(1), under case number FWV 1201057, first degree burglary, Penal Code section 459, conviction date on or about July 24, 2012? "THE DEFENDANT: Yes. "THE COURT: Counsel join? "MR. DUCRE: Yes, your Honor."
This shows that defendant was actively represented by counsel when he admitted his priors, and defendant was aware of his right to proceed with the trial on his priors, but voluntarily and intelligently chose to forego trial and admit his priors. According to defendant's attorney, defendant decided to admit his priors after his attorney reviewed with defendant documentation regarding defendant's priors.
Many of the factors relied on in Mosby in upholding the defendant's true finding on a prior conviction allegation are present in the instant case. Here, defendant admitted the priors within a relatively short time (two weeks) after the jury trial, after a jury found him guilty of the underlying charges. Defendant initially was told he had a right to a jury trial of the prior conviction allegations. Defendant waived his right to a jury trial on the priors, choosing a court trial, and then, at the time the court trial was to begin, admitted the priors. Defendant was represented by counsel, who had reviewed with defendant the evidence of the priors and discussed the matter with defendant. Also, as in Mosby, because defendant had recently had a jury trial, "he not only would have known of, but had just exercised, his right to remain silent at trial." (Mosby, supra, 33 Cal.4th at p. 364.) And, because he had, through his attorney, confronted witnesses during the jury trial, "he would have understood that at a trial he had the right of confrontation." (Ibid.)
In addition, as in Mosby, defendant had experience with the judicial system as a minor and adult. (Mosby, supra, 33 Cal.4th at p. 365; §§ 273.5, 12020, subd. (a)(4), 459.) A recidivist defendant's previous experience in the criminal justice system is relevant in determining the defendant's knowledge and sophistication regarding his legal rights. (Cross, supra, 61 Cal.4th at p. 180; Mosby, supra, 33 Cal.4th at p. 365.) In case No. SCE257310, defendant pled guilty in 2006 to violating section 273.5 (domestic violence) and section 12020, subdivision (a)(4) (possession of concealed dirk/dagger). Defendant executed a guilty plea form waiving his constitutional rights to confront witnesses, a jury trial, and against self-incrimination. The form also advised defendant of the consequences of his plea. In case No. 120157, defendant entered a no contest plea in 2012, to residential burglary (§ 459) and admitted a prison prior (§ 667.5, subd. (b)) and gang enhancement (§ 186.22, subd. (b)(1)(B)). The record shows that on several occasions throughout the proceedings in case No. 120157, the court advised defendant of his constitutional rights.
Defendant's reliance on Cross is misplaced. In Cross, supra, 61 Cal.4th 164, the defendant stipulated to a prior conviction allegation. The trial court accepted the stipulation without advising the defendant of his constitutional rights or the penal consequences of the admission. On appeal, the defendant argued that, because he was not advised of his rights before he entered the stipulation, the stipulation was invalid under Yurko, supra, 10 Cal.3d 857. (Cross, supra, 61 Cal.4th at p. 169.) Our high court in Cross agreed and reversed the true finding on the defendant's prior conviction allegation. (Id. at pp. 169, 180.)
The court in Cross explained that it did not find the defendant's admission of the prior conviction allegation voluntary and intelligent, for the following reasons: "Here, the record contains no indication that Cross's stipulation was knowing and voluntary, and the Attorney General does not contend otherwise. After counsel read the stipulation in open court, the trial court immediately accepted it. The court did not ask whether Cross had discussed the stipulation with his lawyer; nor did it ask any questions of Cross personally or in any way inform him of his right to a fair determination of the prior conviction allegation. [Citation.] The stipulation occurred during the prosecutor's examination of the first witness in the trial; the defense had not cross-examined any witness at that point. [Citation.] Further, we have no information on how the alleged prior conviction was obtained. [Citation.] Even if the complaint's express mention of 'Section 273.5([f])(1) of the Penal Code' was sufficient to put Cross on notice of the penal consequence of his stipulation, nothing in the record affirmatively shows that Cross was aware of his right to a fair determination of the truth of the prior conviction allegation. Accordingly, Cross's stipulation must be set aside." (Cross, supra, 61 Cal.4th at p. 180.)
Here, unlike in Cross, the record is not silent and the Attorney General contends the record demonstrates defendant knowingly and voluntarily admitted his priors. The record here shows that defendant was advised of his right to a jury trial on his priors, and was aware of his trial rights generally, through his participation in the jury trial on the underlying charges and from his years of experience with the judicial system. In addition, defense counsel told the trial court that he and defendant had reviewed documentation before defendant decided to admit his prior convictions. Based on the record as a whole, we therefore conclude any Yurko error was harmless because defendant's admissions of the prior conviction allegations were knowing and voluntary.
V
REIMBURSEMENT OF ATTORNEY FEES
During the sentencing hearing, the trial court ordered defendant to reimburse appointed counsel fees in the amount of $750, as recommended in the probation report. The trial court did not state any findings as to defendant's ability to pay the $750 attorney fee. Nor did defendant object to the attorney fee order or request the trial court to consider defendant's ability to repay the court-ordered attorney fee. After the trial court announced defendant's sentence, including the order for reimbursement of attorney fees, the court asked if the parties submitted. In response, counsel for both parties said yes.
Citing People v. Verduzco (2012) 210 Cal.App.4th 1406, 1420 (Verduzco), defendant contends the trial court violated section 987.8, subdivision (b), by ordering defendant to repay $750 in attorney fees without providing defendant with proper notice or a hearing to determine whether he had the ability to pay the $750 fee. Defendant also argues there is no substantial evidence to justify the fee.
Section 987.8, subdivision (b), provides in relevant part that, "[i]n any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof."
"Penal Code section 987.8 establishes the means for a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant. [Citation.] Under subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the court concludes, after notice and an evidentiary hearing, that the defendant has 'the present ability . . . to pay all or a portion' of the defense costs." (Verduzco, supra, 210 Cal.App.4th at p. 1420.)
In Verduzco the court held that, where there has not been any finding as to ability to pay the attorney fees award, remand is appropriate for the purpose of determining whether the defendant has the ability to pay attorney fees. (Verduzco, supra, 210 Cal.App.4th at p. 1421.) "Ability to pay requires consideration of the defendant's financial position at the time of the hearing, his or her 'reasonably discernible' financial position over the subsequent six months, including the likelihood of employment during that time, and '[a]ny other factor or factors which may bear upon the defendant's financial capability to reimburse the county.'" (Verduzco, at p. 1421; § 987.8, subd. (g)(2)(A)-(D).) The trial court must consider "'what resources the defendant has available and which of those resources can support the required payment,' including both the defendant's likely income and his or her assets." (Verduzco, at p. 1421.)
The court in Verduzco noted that, while the statutory language does not mandate an express finding of an ability to pay, section 987.8 contains a presumption that those sentenced to prison do not have the ability to pay. (§ 987.8, subd. (g)(2)(B); Verduzco, supra, 210 Cal.App.4th at p. 1421.) "Thus, the court must make an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney." (Verduzco, at p. 1421.)
Citing People v. Aguilar (2015) 60 Cal.4th 862, 864 (Aguilar), the People argue defendant forfeited his objection to the attorney fee order because he failed to object during the sentencing hearing, when the court imposed the $750 attorney fee. In response, defendant argues that no objection in the trial court was required to preserve the issue for appeal under People v. Viray (2005) 134 Cal.App.4th 1186. In Viray, the appellate court held that a forfeiture to an appellate challenge to an attorney fee reimbursement order cannot "properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees," given the "patent conflict of interest." (Id. at p. 1215, italics omitted.) The Viray court suggested that it may be inequitable to find forfeiture based on an attorney's failure to object to his own fees; the conflict of interest between the attorney and the client's pecuniary interests militates against a finding of forfeiture. (Viray, at pp. 1215-1216.)
But after Viray and Verduzco were decided, the California Supreme Court in Aguilar, supra, 60 Cal.4th 862, 864, held that the defendant's objection to the trial court order that defendant reimburse attorney fees under section 987.8, subdivision (b), was forfeited by the defendant's failure to object in the trial court. The Aguilar court added the caveat, however, that "[t]his case does not present, and we therefore do not address, the question of whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part." (Aguilar, supra, 60 Cal.4th at p. 868, fn. 4.)
In the instant case, such a conflict of interest is not supported by the record. Defendant was represented by a public defender who receives a salary that is not dependent on defendant paying it. The reimbursement fee does not go to defense counsel but to the county in which defendant is prosecuted. (§ 987.8, subd. (e).) The Rules of Professional Conduct also require that defense counsel act competently and avoid interests adverse to the client. (Rules Prof. Conduct, Rule 3-110.) It must be presumed, without any evidence to the contrary, that if there were grounds to do so, defense counsel would have objected at sentencing to reimbursement of the $750 attorney fee.
The record shows, here, that defense counsel had the opportunity to object to the attorney fee after the trial court announced defendant's proposed sentence and asked counsel if they submitted. At that time, defense counsel could have objected to the attorney fee order or requested a hearing on defendant's ability to pay the fee. Defense counsel's failure to object forfeited the issue on appeal. "'Given that imposition of a fee is of much less moment than imposition of sentence, and that the goals advanced by judicial forfeiture [were equally relevant in the fee context], we [see] no reason . . . to conclude that the rule permitting challenges made to the sufficiency of the evidence to support a judgment for the first time on appeal "should apply to a finding of" ability to pay [fees].'" (People v. Trujillo (2015) 60 Cal.4th 850, 857 (Trujillo); People v. McCullough (2013) 56 Cal.4th 589, 599.)
We note that, as mentioned in Trujillo and Aguilar, "a defendant who fails to object in the trial court to an order to pay probation costs or attorney fees is not wholly without recourse. . . . 'At any time during the pendency of the judgment [ordering payment of attorney fees], a defendant against whom a judgment has been rendered may petition the rendering court to modify or vacate its previous judgment on the grounds of a change in circumstances with regard to the defendant's ability to pay the judgment.' (§ 987.8, subd. (h).) 'Although the sentencing hearing is, in general, the proper time for a defendant to assert all available procedural and factual contentions relating to the trial court's sentencing choices, in an appropriate case a defendant's discovery of trial counsel's failure to properly advise the defendant, before the sentencing hearing, of the requirement of a waiver of a court hearing on ability to pay probation costs may constitute a change of circumstances supporting a postsentencing request for such a hearing.'" (Aguilar, supra, 60 Cal.4th at p. 868, quoting Trujillo, supra, 60 Cal.4th at p. 861.)
VI
DISPOSITION
The People's judicial notice request, filed on August 8, 2016, requesting judicial notice of attached certified copies of (1) defendant's guilty plea in San Diego County Superior Court, case No. SCE257319 (guilty plea dated January 12, 2006) and (2) no contest plea in San Bernardino Superior Court, case No. FWV1201057-2 (no contest plea dated July 24, 2012), is granted. (Evid. Code, §§ 452, subd. (d)(1); 459, Cal. Rules of Court, rule 8.252.) --------
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.