Opinion
F061970 Super. Ct. No. F10906142
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIE JAMES BUSH, JR., Defendant and Appellant.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Dale Ikeda, Judge.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Willie James Bush, Jr., appeals from the judgment entered after he pled no contest to corporal injury to a cohabitant, a felony (Pen. Code, § 273.5, subd. (a)). The court sentenced Bush to the middle term of three years in prison and ordered him to pay several fines and fees including a $296 probation report fee pursuant to section 1203.1b. On appeal, Bush challenges the probation report fee on the ground that the court failed to follow the statutory requirements to find he had the ability to pay the fee. We affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
FACTS
The facts of the offense as set forth in the probation report provide that the victim had been dating Bush for eight months. On December 3, 2010, she called officers from a pay phone. Responding officers saw bruises on her arms and forearms and swelling to her left eye. She told officers that Bush beat and strangled her earlier that day. Officers contacted Bush, who told them he had smoked crack cocaine and drank alcohol that day, but he denied hitting the victim.
The probation report indicated that Bush, age 42, was employed as a waiter/busboy at a restaurant and made $900 a month. He lived alone and had no dependants. His parents were deceased and he had no contact with his siblings. He had chronic pain from 1990 gunshot wounds, "a problem with alcohol," and smoked cocaine three times a week. The report recommended that Bush pay a probation report fee of $296 within 30 days following his release from custody. At the sentencing hearing, when the court asked counsel if there were any additions or corrections to the report, counsel responded that the time credits needed to be updated but did not object to any procedural irregularity regarding the section 1203.1b fee.
DISCUSSION
Presentence Report Fee
Bush contends the court imposed an unauthorized sentence when it ordered him to pay a $296 presentence report fee pursuant to section 1203.1b. He submits that when the court fails to follow the procedures mandated by section 1203.1b in imposing a probation fee, there is insufficient evidence to support the order. Thus, the issue may be raised for the first time on appeal. The People respond that the issue was forfeited because Bush did not challenge the order in the trial court. We conclude the issue was forfeited.
Section 1203.1b, subdivision (a) provides that the trial court may order a defendant to pay the cost of the presentence report. It directs the probation officer to determine the defendant's ability to pay all or a portion of the cost of the report. It also directs the officer to inform the defendant he is entitled to a hearing that includes the right to counsel, in which the court must determine his ability to pay and the payment amount. Subdivision (b) of section 1203.1b states, if the defendant does not waive his right to a hearing, the probation officer must refer the matter to the court to schedule a hearing to determine the amount of payment and the manner in which the payment shall be made.
Section 1203.1b is a recoupment statute that reflects the legislative policy in favor of shifting costs stemming from criminal acts back to the convicted defendant and replenishing the county treasury. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1073 (Valtakis).)
Here, the probation officer's report included information about Bush's financial status and recommended that the court impose a $296 presentence report fee, but there is no indication that the probation officer or the court expressly determined Bush's ability to pay. Nor is there any indication that Bush was notified of his right to a hearing on the issue or that he waived that right. However, neither Bush nor his trial counsel objected to the fee at the sentencing hearing.
Forfeiture
There is a split of authority as to whether an appellant can raise a sufficiency of the evidence challenge to an order to pay probation fees if he failed to object in the trial court. In People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco),which Bush cites, the Sixth District held that a defendant who failed to object to the imposition of a probation supervision fee in the trial court did not forfeit the issue on appeal because the challenge was to the sufficiency of the evidence to support a determination the defendant had the ability to pay the fee. In contrast, in People v. Valtakis, supra, 105 Cal.App.4th at p. 1072, which the People cite, the First District held that supreme court precedent compelled the conclusion that a defendant's failure to object in the trial court to noncompliance with statutory procedures while imposing a probation fee under section 1203.1b waived the error for purposes of appeal. A similar issue is before the California Supreme Court. (People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513 [whether failure to object to imposition of a jail booking fee forfeited a sufficiency of the evidence of ability to pay claim on appeal].) We find the reasoning of Valtakis more persuasive.
This court has reached the same conclusion in a number of unpublished cases.
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Under the forfeiture rules of People v. Welch (1993) 5 Cal.4th 228 and People v. Scott (1994) 9 Cal.4th 331, 353 only sentencing claims properly raised by the parties in the trial court are reviewable on appeal. Claims regarding sentences, which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner, are deemed forfeited on appeal if they were not raised in the trial court. (People v. Scott, supra, 9 Cal.4th at p. 353.)
Bush contends the forfeiture rules do not apply because he is challenging an unauthorized sentence, one that was imposed in violation of the procedural prerequisites set forth in section 1203.1b. He relies on People v. Pacheco, supra, 187 Cal.App.4th 1392, where the court struck a monthly probation fee and other fines and fees on the basis of insufficient evidence of ability to pay, despite no objection at trial. The Pacheco court based its holding on two of its earlier opinions where it held that claims based on the insufficiency of the evidence to support an attorney fees reimbursement order do not require an objection in the trial court to be raised on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186 (Viray)and People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez).)
In Viray, the court found an exception to the forfeiture rule for a challenge to an attorney fee award under section 987.8, subdivision (b) based on the defendant's right to effective assistance of counsel. The court concluded that an appellate forfeiture should not be predicated on a trial attorney's failure to challenge an order that the defendant pay the attorney's own fees. (People v. Viray, supra, 134 Cal.App.4th at p. 1215.)
In Lopez, the attorney fees provision at issue, section 987.8, subdivision (g)(2)(B), provided that a defendant sentenced to prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his defense, unless the court finds unusual circumstances. The trial court ordered the defendant to pay $1,000 in attorney fees. He did not object at the time but, on appeal, contended there was no evidence to support the implied finding of his ability to pay. (People v. Lopez, supra, 129 Cal.App.4th at p. 1536.) The Lopez court stated that the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal. It then construed the provision to require an express finding of unusual circumstances before the court could order a prisoner to reimburse his attorney. (Id. at p. 1537.) The court noted that, because it was reversing Lopez's convictions, the trial court would have an opportunity to reconsider the attorney fee award. (Ibid.)
Viray and Lopez are too legally and factually narrow to support the broad exception to the general forfeiture rule for substantial evidence challenges to fines and fees imposed at sentencing that Pacheco adopted. Virtually any challenge to a fee imposed without an objection at a sentencing hearing can be framed as a sufficiency of the evidence issue on appeal, which would render cognizable issues addressed most effectively and economically in the trial court. Moreover, Pacheco did not discuss or distinguish the California Supreme Court authority on the forfeiture rule for sentencing errors, which undermines its persuasiveness. (People v. Pacheco, supra, 187 Cal.App.4th at p. 1397.)
Bush submits that People v. Valtakis, supra, 105 Cal.App.4th 1066 was wrongly decided because, if the trial court makes no inquiry into the defendant's ability to pay, it does not have jurisdiction to impose a fee. He contends that the procedural irregularity results in an unauthorized sentence, which is an exception to the forfeiture rule. (People v. Anderson (2010) 50 Cal.4th 19, 26.) We disagree. A sentence is "unauthorized," where it could not lawfully be imposed under any circumstance in a particular case. (People v. Scott, supra, 9 Cal.4th at p. 354.) In Bush's case, a probation report fee could lawfully have been imposed with an ability to pay finding. Further, his claim is that the fee was imposed in a procedurally flawed manner for lack of notice, a hearing and an express finding. The unauthorized-sentence exception does not apply. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1072.) Accordingly, we find Bush's failure to object at sentencing to noncompliance with the probation fee procedures under section 1203.1b forfeited the claim on appeal.
DISPOSITION
The judgment is affirmed.