Opinion
F074081
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC ASHLEY ARMSTRONG, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16901099)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Jr., Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Defendant Eric Ashley Armstrong contends on appeal that the trial court erred in imposing a probation report fee without determining his ability to pay. We affirm.
BACKGROUND
On May 17, 2016, defendant pled no contest to pandering by procuring (Pen. Code, § 266i, subd. (a)(1)) and misdemeanor spousal abuse (§ 273.5, subd. (a)), in exchange for a stipulated four-year prison term. The court referred the matter to the probation office for report and recommendation. The court set the date for sentencing and ordered defendant to be present.
All statutory references are to the Penal Code unless otherwise noted. --------
The probation report, prepared on June 8, 2016, noted that defendant was a construction laborer. He had been in that occupation for three years and currently made a net income of $2,100 per month. The report recommended that defendant be ordered to pay $1,800 in restitution (§§ 1202.4, 1202.45), $80 pursuant to section 1465.8, subdivision (a)(1), $60 pursuant to Government Code section 70373, and $296 pursuant to section 1203.1b for a probation report within 30 days or, if in custody, within 30 days following release, or as ordered by the court.
On June 15, 2016, at the sentencing hearing, the trial court gave defendant, who was representing himself, the opportunity to read the probation report. Defendant said he had nothing to add to it. The trial court sentenced defendant to four years in state prison on the pandering count, granted credit for time served on the misdemeanor abuse count, and imposed various fines and fees including $1,200 restitution fines and a $296 probation report fee pursuant to section 1202.1b, as follows:
"THE COURT: Okay. The Court will deny probation .... The Court will impose the four-year term, and that would be the middle term.
"Time credits are 484 days; 242 actual, 242 conduct. Those will be awarded. Credit for time served on the misdemeanor [section] 273.5.
"In compliance with section 1202.4, the Court will impose a fine of $1200. A $1200 fine will be suspended pursuant to [section] 1202.45.
"In compliance with section 1202.4[, subdivision ](f), restitution will be ordered to the named victim in the amount to be named later.
"In compliance with section 296[, subdivision ](a), the defendant is ordered to provide biological samples for the state's DNA data bank.
"A $40 courthouse security fee per conviction and a $30 assessment per conviction will be imposed, the courthouse security fee.
"The Court will also impose a $296 pre sentence report fee.
"The defendant is ordered to report to the Fresno County Action Center within 30 days of his release from custody.
"Do you have any questions, sir?
"THE DEFENDANT: Yes. If I could ask for a fee waiver. I don't have the means to pay the restitution.
"THE COURT: A fee waiver?
"THE DEFENDANT: Not sure if—
"THE COURT: Those are minimum fines that the Court must impose, so those will remain. [¶] Anything else?
"THE DEFENDANT: If I intend to appeal the decision, do I have to give notice?
"THE COURT: You have 60 days to appeal the decision of this Court. In order to do so, you must file a notice of appeal within 60 days.
"THE DEFENDANT: All right. Thank you.
"THE COURT: All right. Thank you. [¶] [Defendant], you must file a notice of appeal with the superior court within 60 days. [¶] Thank you."
On July 19, 2016, defendant filed a notice of appeal. The trial court granted his request for a certificate of probable cause.
DISCUSSION
"Section 1203.1b provides in relevant part that when a defendant is convicted and granted probation or a conditional sentence, and has been the subject of any preplea or presentence investigation and report, the probation officer—taking into account any amount the defendant is ordered to pay in fines, assessments and restitution—must make a determination of the defendant's ability to pay all or a portion of the reasonable cost of probation supervision and the preparation of the presentence report. (§ 1203.1b, subd. (a).) The statute directs the trial court to order the defendant to appear before the probation officer for a determination of the amount and manner of payments based on the defendant's ability to pay. (Ibid.) 'The probation officer shall 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. The 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.' (Ibid.) 'When the defendant fails to waive the right ... to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made.' (Id., subd. (b).) The court orders the defendant to pay the reasonable costs if it finds, based on the probation officer's report, he or she has the ability to pay them. (Ibid.)" (People v. Trujillo (2015) 60 Cal.4th 850, 855.)
Defendant contends the trial court failed to determine his ability to pay the probation report fee imposed under section 1202.1b. The People argue defendant forfeited this issue by failing to object to the probation report fee or request an ability-to-pay hearing at sentencing.
" 'Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal.' [Citation.] ' "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" ' [Citation.] Additionally, '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' " (People v. McCullough (2013) 56 Cal.4th 589, 593.)
"Defendants routinely challenge on appeal restitution fines [and other fines and fees] to which they made no objection in the sentencing court. In virtually every case, the probation report put the defendant on notice that [the fine or fee] would be imposed. Requiring the defendant to object to the fine [or fee] in the sentencing court if he or she believes it is invalid places no undue burden on the defendant and ensures that the sentencing court will have an opportunity to correct any mistake that might exist, thereby obviating the need for an appeal. Conversely, allowing the defendant to belatedly challenge [the fine or fee] in the absence of an objection in the sentencing court results in the undue consumption of scarce judicial resources and an unjustifiable expenditure of taxpayer monies. It requires, in almost all cases, the appointment of counsel for the defendant at taxpayers' expense and the expenditure of time and resources by the Attorney General to respond to alleged errors which could have been corrected in the trial court had an objection been made. Moreover, it adds to the already burgeoning caseloads of appellate courts and unnecessarily requires the costly depletion of appellate court resources to address purported errors which could have been rectified in the trial court had an objection been made. This needless consumption of resources and taxpayer dollars is unacceptable, particularly since it greatly exceeds the amount of the fine at issue. Statewide, taxpayers are spending hundreds of thousands of dollars on challenges to relatively minuscule restitution fines [and other fines and fees]." (People v. Gibson (1994) 27 Cal.App.4th 1466, 1469 [trial court's alleged failure to consider defendant's ability to pay restitution fine forfeited by failure to object]; People v. Welch (1993) 5 Cal.4th 228, 236 ["[forfeiture] principles encourage development of the record and a proper exercise of discretion in the trial court"].)
Defendant counters the People's forfeiture argument by asserting that his objection at sentencing was adequate to preserve the issue because his request for a "fee waiver" and his statement that he did not have the ability to pay "the restitution" implicitly alerted the trial court to the fact that he could not pay the probation report fee either. In this case, we must disagree.
"An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. [Citations.] In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (People v. Scott (1978) 21 Cal.3d 284, 290; see People v. Clark (2011) 52 Cal.4th 856, 966.) Here, the trial court responded to defendant's objection by explaining that these were mandatory minimum fees that the court was required to impose. Clearly, the court did not understand defendant's objection to "the restitution" as including the probation report fee, which is not a mandatory fee. Thus, we cannot say the court was fairly apprised that defendant was raising his inability to pay the probation report fee. Defendant had reviewed the probation report recommending the probation report fee just prior to sentencing and was thereby placed on notice it might be imposed. Under these circumstances, we must conclude defendant forfeited the issue.
DISPOSITION
The judgment is affirmed.