Opinion
A151347
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN WILLIAM AMOROSO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR945373)
Defendant John Amoroso pleaded no contest to a domestic violence charge. At his sentencing hearing, the trial court placed him on probation and, among other things, imposed a $1,200 restitution fine, a $500 domestic violence fee, and a $90 criminal justice administrative fee as conditions of probation. Defendant argues that his counsel was ineffective because she failed to request an ability to pay determination despite his disability and financial status. We disagree and affirm.
BACKGROUND
On January 31, 2017, deputies responded to a domestic violence call at a Lake County residence. Defendant was arrested and charged with willful infliction of corporal injury upon a cohabitant in violation of Penal Code section 273.5, subdivision (a). On February 21, pursuant to a negotiated plea agreement, defendant pleaded no contest in exchange for three years' probation and up to 180 days in county jail.
The probation department submitted a presentence investigation report and recommendation in which it recommended felony probation for three years subject to various conditions. These conditions included paying a $1,200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), a $500 domestic violence fee pursuant to Penal Code section 1203.097, subdivision (a)(5)(A), and a $90 criminal justice administrative fee pursuant to Government Code section 29550, subdivision (c). The report also listed defendant's income source as "Disability $750.00 Monthly" and his monthly expenses as $700.
At the sentencing hearing on March 20, the following exchange took place:
"THE COURT: So, at this time, Mr. Amoroso, have you read all of the recommended terms and conditions of probation?
"DEFENDANT: Yes.
"THE COURT: Do you understand them?
"DEFENDANT: Yes.
"THE COURT: Do you agree to comply with all the terms?
"DEFENDANT: Yes."
The trial court then suspended imposition of sentence and placed defendant on formal felony probation for three years subject to each condition listed in the report, including paying the above listed fine and fees and serving 180 days in Lake County Jail.
On May 10, defendant filed a timely notice of appeal.
DISCUSSION
Defendant challenges the trial court's imposition of the restitution fine, domestic violence fee, and criminal justice administrative fee because there was no determination as to his ability to pay them. However, as he concedes, he forfeited direct assertion of this error when his attorney did not object at sentencing. Instead, defendant argues that he received ineffective assistance of counsel because his attorney failed to object or request an ability to pay determination.
The two-prong test for ineffective assistance of counsel is well settled. First, an appellant must establish that counsel's performance was deficient when it fell below an objective standard of reasonableness measured by prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Carter (2003) 30 Cal.4th 1166, 1211.) A reviewing court's scrutiny of counsel's performance is highly deferential, and an appellant must overcome the presumption that the challenged action is sound trial strategy. (Strickland, at pp. 689-691.) Second, an appellant must also show that the deficient performance prejudiced his defense. (Id. at pp. 687, 691-692.) Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694; accord, People v. Carter, supra, at p. 1211.)
Here, defendant fails to establish deficient performance. He argues that, given his limited disability income, his attorney was ineffective because she failed to object and request an ability to pay hearing before the trial court imposed the fine and fees. However, as quoted above, defendant personally consented to the fine and fees at the sentencing hearing. The probation department report plainly stated the amounts for each. The trial court asked him if he read, understood, and agreed to comply with the probation conditions. Defendant answered in the affirmative that he did, and he would. He cannot now challenge the probation conditions on appeal when he expressly agreed to them at sentencing. (See, e.g., People v. Moret (2009) 180 Cal.App.4th 839, 845-848 [trial court did not abuse its discretion in imposing no-marijuana-use probation conditions because defendant explicitly agreed to them at sentencing].)
DISPOSITION
The judgment is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.