Opinion
F061538
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN SCOTT CHANDLER, Defendant and Appellant.
Deborah Prucha, 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, and Louis M. Vasquez, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09900803)
OPINION
THE COURT
Before Dawson, Acting P.J., Kane, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.
Deborah Prucha, 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, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
On October 20, 2010, appellant, John Scott Chandler, pled no contest to assault with a semiautomatic firearm (count 1/Pen. Code, § 245, subd. (b)) and making criminal threats (count 3/§ 422). Chandler also admitted a personal use of a firearm enhancement (§ 12022.5, subd. (a)) in each count and an additional arming enhancement (§ 12022, subd. (a)(1)) in count 3.
All further statutory references are to the Penal Code.
--------
On December 8, 2010, the court sentenced Chandler to an aggregate 10-year term: the middle term of six years on his assault conviction, the middle term of four years on his personal use of a firearm enhancement in that count, a concurrent midterm of two years on count 3, a concurrent four-year term on the personal use of a firearm enhancement in that count, and a stayed term on the other arming enhancement in that count.
On appeal, Chandler contends the court erred when it ordered him to pay for the cost of preparing his probation report. We will affirm.
FACTS
On October 14, 2008, a man followed Chandler's former girlfriend as she drove to her house after she told him that she was having car problems. At the house, Chandler approached the man, put the barrel of semiautomatic gun to the man's neck, and threatened to kill him. Police arrested Chandler a short time after the incident.
DISCUSSION
At Chandler's sentencing hearing, the court, without objection, ordered him to pay a $296 probation report preparation fee pursuant to section 1203.1b. Chandler contends the court erred in imposing this fee because the evidence is insufficient to show that he had the ability to pay this amount. We will find that Chandler forfeited this claim on appeal.
Section 1203.1b, subdivision (a) provides:
"In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of ... conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203.... 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." (Italics added.)
In People v. Scott (1994) 9 Cal.4th 331 (Scott), the Supreme Court held:
"[T]he [forfeiture] doctrine ... [applies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Scott, supra, 9 Cal.4th at p. 353.)
"In essence, claims deemed [forfeited] on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Scott, supra, 9 Cal.4th at p. 354, italics added.)
In People v. Valtakis (2003) 105 Cal.App.4th 1066, the court relied, in part, on Scott to hold that "failure to object in the trial court to statutory error in the imposition of a probation fee under section 1203.1b waives the matter for purposes of appeal." (Id. at p. 1072.) In People v. Butler (2003) 31 Cal.4th 1119 (Butler), the Supreme Court held that a defendant can raise, without a prior objection, a claim that the finding of probable cause to require HIV testing is not supported by substantial evidence. (Butler, at pp. 1126-1127.) However, in his concurring opinion, Justice Baxter, joined by Justice Chin, wrote separately "only to make explicit what is implicit in the majority opinion. [¶] ... 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]." (Id. at p. 1130 (conc. opn. of Baxter, J.).) In accord with the above authorities, we conclude that Chandler forfeited his challenge to the imposition of a probation preparation fee by his failure to object in the trial court.
DISPOSITION
The judgment is affirmed.