Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2009020056, Nancy Ayers, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, Suzan E. Hier, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Abelino Ortega Chavez appeals the judgment entered following his guilty plea to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and his admission that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). In exchange for his plea, charges of battery (§ 243, subd. (e)(1)) and child endangerment (§ 273a, subd. (b)) were dismissed in the interests of justice. Appellant was sentenced to five years in state prison. Execution of the sentence was suspended and appellant was placed on three years probation with terms and conditions including that he serve one year in county jail and attend weekly domestic violence counseling sessions. Appellant was also ordered to pay restitution along with various fines and fees. He contends the court erred in ordering him to comply with the probation conditions set forth in section 1203.097. He also claims the evidence does not support the court's finding that he has the ability to pay certain costs and fees. We affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
Because appellant pleaded guilty prior to trial, the relevant facts are derived from the preliminary hearing transcript. Prior to 2008, appellant and Juana Diaz de Leon lived together and had two children. By November 14, 2008, the couple had separated. De Leon and the children were living with Corrina Magallone in Oxnard. That evening, de Leon, the children, and Magallone arrived at their house in a car driven by Alexander Lopez. Appellant pulled up in his truck and appeared to be angry as he got out and approached the other vehicle. De Leon got out and told Lopez not to do anything. Appellant suddenly ran to the car, opened the driver's seat door, and punched Lopez in the face. Appellant shouted and asked Lopez who he was, and Lopez said he was a friend.
De Leon tried to push appellant away, but appellant grabbed her and moved her aside. Appellant said that he did not want to hurt de Leon because she was the mother of his children, but "was going to have it out" with Lopez. Appellant continued punching Lopez, then used a pocket knife to stab Lopez in his upper left arm and cutting toward his elbow. Appellant's two-year-old son, who witnessed the incident from the back seat, was crying and yelled, "Daddy. Run. Run." Appellant put the knife away, started laughing, then got in his truck and left.
De Leon drove Lopez to the hospital, where he received 15 staples for his injury. Appellant later told his then-girlfriend, "I did something wrong. I have a background, and I did something to an individual. I cut him. I don't know exactly where, how deep, or how much... but I just know I cut him."
DISCUSSION
I.
Domestic Violence Probation Terms
Trial courts have discretion to impose reasonable conditions of probation. (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A condition of probation is reasonable if it relates to the probationer's crime, does not restrict non-criminal conduct, or imposes requirements reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) Past, current, and possible future criminal conduct may be considered in imposing conditions of probation. (Id. at p. 487; In re York (1995) 9 Cal.4th 1133, 1150-1151.) A defendant who challenges the terms and conditions of his or her probation bears the burden of showing that the court's sentencing decision was irrational or arbitrary. In the absence of such a showing, we must presume that the court acted to achieve legitimate sentencing objectives. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; People v. Brown (2001) 96 Cal.App.4th Supp. 1, 40.) A claim that a probation term is unreasonable is forfeited if not raised below. (People v. Welch (1993) 5 Cal.4th 228, 230-237.)
Section 1203.1 provides in pertinent part: "(a) The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence.... [¶] (j) The court may impose and require... reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer...."
Subdivision (a) of section 1203.097 provides various terms and conditions that must be included when a defendant is granted probation for a crime involving domestic violence, including participation in counseling and the payment of at least $400 to domestic violence programs. Even where these terms and conditions are not mandated, the trial court has discretion to impose them as conditions of probation if they are reasonably related to the crimes committed or to future criminality. (People v. Brown, supra, 96 Cal.App.4th Supp. at p. 40.)
Family Code section 6211 defines "domestic violence" as "abuse perpetrated against any of the following persons: [¶] (a) A spouse or former spouse. [¶] (b) A cohabitant or former cohabitant, as defined in Section 6209. [¶] (c) A person with whom the respondent is having or has had a dating or engagement relationship. [¶] (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). [¶] (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected. [¶] (f) Any other person related by consanguinity or affinity within the second degree."
Appellant contends the court erred in conditioning his probation on the terms set forth in section 1203.097 because he was not convicted of a crime involving domestic violence. We disagree.
Appellant was charged with assault with a deadly weapon, domestic battery, and child endangerment. It is undisputed that the charge of battery, in which the victim was appellant's former girlfriend and the mother of his child, was a crime of domestic violence as contemplated in section 1203.097. In executing his plea, appellant signed a Harvey waiver allowing the court to consider the dismissed count of battery and child endangerment in determining his sentence. When the matter in this case was initially called for sentencing on May 10, the prosecutor urged the court to deny probation and sentence appellant to state prison. The court indicated that it was considering probation and the prosecutor replied: "Your Honor, [defense counsel] and I had discussed... at the time of the plea that while the People would not be requiring a plea – guilty plea to Counts 2 and 3 that the defendant, I believe, entered a Harvey waiver to those counts. [¶] And the People are going to ask for – and I believe the defense has already agreed to – if he is granted probation, all the standard terms associated with those convictions, meaning all the standard terms associated with Penal Code Section 1203.097..., as well as 273a(b) and go through the 52 weeks of domestic violence classes and subsequently through the 52 weeks of parenting classes, which are associated... with those Penal Code provisions." Defense counsel did not challenge this remark.
(People v. Harvey (1979) 25 Cal.3d 754.)
The court placed appellant on probation and imposed the terms and conditions identified in subdivision (a) of section 1203.097, which among other things require appellant to attend 52 weeks of domestic violence counseling sessions and make payments to the domestic violence fund and the local women's shelter. The court did not mention section 1203.097 in imposing these terms and conditions, and neither appellant nor his attorney objected when they were imposed. The probation department also recommended, without any objection from appellant, that the domestic violence terms be included in any grant of probation.
Appellant fails to demonstrate that the court erred in imposing the probation terms enumerated in section 1203.097. Appellant's claim is premised on the unsupported assertion that the court did not impose the terms in the exercise of its discretion under section 1203.1, but rather was merely "acting upon the prosecutor's assertion that section 1203.097 applied." The record reflects that the prosecutor requested the probation terms, and in doing so noted that appellant had executed a Harvey waiver with regard to the dismissed count involving domestic violence. The prosecutor also referred to a discussion with defense counsel on the subject, and stated his belief that "the defense ha[d] already agreed" that appellant would not oppose the domestic violence probation terms if the court were to grant probation. Neither appellant nor his attorney challenged this representation, nor did he object when the domestic violence probation terms were later imposed. By effectively inducing the court to grant probation on the representation that he would agree to abide by the terms identified in section 1203.097, appellant cannot be heard to complain that the terms were applied as a condition of his probation. (See People v. Welch, supra, 5 Cal.4th at p. 239 (conc. opn. of Arabian, J.) ["If the trial court determines in the proper exercise of its discretion that it cannot achieve the rehabilitative goals of probation without imposing an objectionable condition, then it will be fully justified in denying probation on that basis if the defendant declines to accept it"]; People v. Moret (2009) 180 Cal.App.4th 839, 852, fn. 11 [quoting same].) In any event, appellant's claim fails because the Harvey waiver allowed the court to consider the dismissed domestic battery count in fashioning the terms and conditions of appellant's probation. (People v. Martin (2010) 51 Cal.4th 75, 82.)
In addressing this issue, appellant refers to the "basic rule" that the essential terms of a plea bargain should be stated on the record. (See People v. Feyrer (2010) 48 Cal.4th 426, 438.) Although appellant's plea form and colloquy make no mention of domestic violence probation terms, the agreement is also devoid of any agreement regarding sentencing. The prosecutor emphatically urged the court to sentence appellant to state prison. Appellant asked the court to grant probation, and in doing so did not dispute that he had agreed to be bound by the domestic violence terms if probation were granted. "Probation is not a right, but a privilege. 'If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence. [Citations.]' [Citations.]" (People v. Bravo (1987) 43 Cal.3d 600, 608-609.)
II.
Appellant's Ability to Pay Costs and Fees
As a condition of his probation, appellant was ordered to pay a $287 criminal justice administration (booking) fee, $1,524 in probation investigation costs, $134 a month for probation supervision, $400 to the State Domestic Violence Fund, $300 to the Ventura County Women's Shelters. Appellant contends that all of these costs and fees must be stricken because the record does not support the court's finding that appellant has the ability to pay them. The People respond that appellant forfeited this claim by failing to object at sentencing, and that in any event the record supports the court's finding that appellant has the ability to pay all of the costs and fees that were imposed. Appellant notes that there appears to be a split of authority on the issue of forfeiture with regard to the booking fee and costs of probation, and urges us to adopt the view that his claim is effectively one of insufficient evidence for which no objection is necessary. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 [no forfeiture]; contra, e.g., People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071.) We need not weigh in on the forfeiture issue because the record supports the court's finding that appellant has the ability to pay the costs and fees for which such a showing was necessary.
In light of this conclusion, we also need not address the People's claim that the booking fee was imposed pursuant to Government Code section 29550.1, which does not refer to the defendant's ability to pay, as opposed to Government Code section 29550.2, which expressly requires such a finding. The parties' dispute regarding whether the alleged error requires remand is also moot.
Section 1203.1b "permits the trial court to require a defendant to reimburse probation costs if the court determines, after hearing, that the defendant has the ability to pay all or a portion of such costs." (People v. Bennett (1987) 196 Cal.App.3d 1054, 1056.) Booking fees and any fees imposed pursuant to section 1203.097 must also be supported by a finding of the defendant's ability to pay them. (Gov. Code, §§ 29550, 29550.2; § 1203.097, subds. (a)(5), (c)(1)(P).) The finding of an ability to pay may be express or implied and must be supported by substantial evidence. (People v. Pacheco, supra, 187 Cal.App.4th at p. 1400.)
Substantial evidence supports the court's finding that appellant has the ability to pay the costs and fees imposed as a condition of his probation. The record demonstrates that appellant has a secure job in which he earns $12.50 an hour. According to appellant's own statement, his manager assured him that his job would be secure "[n]o matter how long it takes" to resolve the criminal matter. To account for the fact that appellant would be unable to earn income while in jail, the court ordered his payments to start on April 27, 2011, and limited his payment to $255 a month. Although appellant notes that the financial declaration he submitted reflects a monthly deficit for his living expenses, the monthly payments he stated include a $300 vehicle payment and a $320 credit card payment. The statement also reflects that appellant has a monthly income of $1,400, which indicates that he can either work more hours on his current job or supplement his employment with a part-time job. Undoubtedly appellant will also have to reduce his monthly spending on other items, such as his $70 monthly telephone bill. The fact that the monthly $255 payment may be difficult does not compel the conclusion that appellant lacks the ability to pay. There is no basis for us to disturb the court's factual finding in this regard.
III.
Other Fines and Fees
In their respondent's brief, the People assert that the judgment must be corrected to reflect the imposition of a mandatory $30 court security fee (§ 1465.8, former subd. (a)(1)), and a mandatory $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). The People also note that the court failed to impose and stay a $200 probation revocation fine, as required under section 1202.44.
As appellant notes, the court security and criminal conviction assessment fees were imposed as reflected in the minute order from the date of his guilty plea and conviction. Appellant does not dispute that judgment must be modified to reflect an imposed and stayed $200 probation revocation fine. We shall order the judgment modified accordingly.
DISPOSITION
The judgment is modified to reflect the imposition and staying of a $200 probation revocation fine pursuant to section 1202.44. In all other respects, the judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.