Opinion
NOT TO BE PUBLISHED
Super. Ct. Kern County, Nos. BF123437A. BF123437B.
MODIFICATION OF OPINION ON DENIAL OF REHEARING
HILL, P. J.
THE COURT:
It is ordered that the opinion herein filed on January 28, 2011, be modified as follows:
1. On page 11 under the heading of section IV, insert the following as the first paragraph:
Appellants contend the trial court erred in ordering them to pay probation-related costs and fees without first holding a hearing to determine their ability to pay. They also contend there was insufficient evidence to support any implied finding by the trial court of an inability to pay. We conclude that appellants’ claims are subject to forfeiture on appeal.
2. On page 14, at the end of section IV and before the heading for section V, insert the following paragraphs:
Appellants try to avoid this result by arguing their substantial evidence claim is an exception to the forfeiture rule. The case on which appellants rely, People v. Butler (2003) 31 Cal.4th 1119 (Butler), is distinguishable. In Butler, the California Supreme Court considered a challenge to an HIV testing order made pursuant to section 1202.1. The trial court’s authority to order the test required both defendant’s conviction of an enumerated offense and a finding by the trial court of probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from the defendant to the victim. (Butler, supra, at pp. 1125-1126.) The Supreme Court concluded a defendant forfeits the procedural claim that the trial court failed to make the required finding of probable cause by failing to object at the trial court level. (Ibid.; People v. Stowell (2003) 31 Cal.4th 1107, 1113-1115.) In contrast, the Supreme Court held a defendant can raise, without a prior objection, a claim that the finding of probable cause is not supported by substantial evidence. (Butler, at pp. 1126-1127.) It carefully noted, however, that this conclusion was required by the specific terms of section 1202.1 and the general mandate that involuntary HIV testing is strictly limited by statute. (Butler, at p. 1128, fn. 5.) “For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection[, ] sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849.” (Ibid.)
Butler reinforces our conclusion here. In his concurring opinion, Justice Baxter, joined by Justice Chin, wrote separately “only to make explicit what is implicit in the majority opinion. [¶] [D]espite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal …. This includes claims that the record fails to demonstrate the defendant’s ability to pay a fine [citations].” (Butler, supra, 31 Cal.4th at p. 1130, conc. opn. of Baxter, J., second italics added.)
We conclude the forfeiture rule of Scott, supra, 9 Cal.4th 331 precludes review of appellants’ claims on appeal. (Valtakis, supra, 105 Cal.App.4th 1066.)
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
WE CONCUR: CORNELL, J., DETJEN, J.