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People v. Eby

California Court of Appeals, Sixth District
Feb 17, 2011
No. H035379 (Cal. Ct. App. Feb. 17, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EWIN EBY, Defendant and Appellant. H035379 California Court of Appeal, Sixth District February 17, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. EE806696.

Premo, Acting P.J.

Defendant William Ewin Eby pleaded no contest to burglary, grand theft (two counts), petty theft with a prior, and vehicle theft (two counts). He also admitted having suffered three prior convictions for purposes of the Three Strikes law and one prior conviction for purposes of a five-year enhancement. Upon defendant’s motion, the trial court struck two strike priors and sentenced defendant to 13 years. It also imposed several fines and penalties including a $10 theft fine with a $26.50 penalty assessment pursuant to Penal Code section 1202.5. On appeal, defendant contends that the evidence is insufficient to support the trial court’s implied finding that he had the ability to pay the fine. We disagree and affirm the judgment.

Further unspecified statutory references are to the Penal Code.

BACKGROUND

The parties agree that the trial court imposed the fine and penalty assessment pursuant to section 1202.5. Defendant did not raise any objection to the imposition.

DISCUSSION

Section 1202.5, subdivision (a), requires that in any case where a defendant is convicted of, among other crimes, burglary, the trial court “shall” order a $10 fine “in addition to any other penalty or fine imposed.” It further provides: “If the court determines that the defendant has the ability to pay all or part of the fine, ” it shall set the amount and order him to pay the ordered sum “in the manner... the court believes reasonable and compatible with the defendant’s financial ability.” The final sentence requires the trial court, in making that determination, to consider the amount of other imposed fines and restitution.

Defendant contends that “the evidence is insufficient to support an implied finding that [he] had the ability to pay this fine. Also, there is no sufficient evidence that the court considered whether [he] had the ability to pay the amount actually imposed against him because the various penalties, surcharges, and assessments attendant to this fine more than double it.”

Defendant has forfeited any error in this regard.

When a statute mandating imposition of a fine requires a consideration of the ability to pay, the defendant must raise the issue in the trial court by objecting or demanding a hearing, especially when the probation report recommends imposition of such a fine as does the probation officer’s report in this case. If he fails to do so, he forfeits the issue on appeal. (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750.) This principle was specifically at issue in the context of a section 1202.5 fine: “Since defendant did not raise the issue in the trial court, we reject his contention that the fines must be reversed because the court did not make a finding of defendant’s ability to pay them, and nothing in the record shows he had the ability to pay.” (People v. Crittle (2007) 154 Cal.App.4th 368, 371.)

Defendant claims that Crittle was wrongly decided. He relies on People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco). This reliance is erroneous.

In Pacheco, the defendant failed to object to certain probation conditions below. Among other issues, he challenged on appeal a $259.50 criminal justice administration fee (Gov. Code, § 29550, subd. (c) [if the arresting agency was the county] or Gov. Code, § 29550.2 [if the arresting agency was other specified arresting agencies]), $64 per month probation fee (§ 1203.1b), and $100 attorney fee (§ 987.8). “His challenge to all three fines or fees [was] based on the court having failed to determine his ability to pay them.” (Pacheco, supra, 187 Cal.App.4th at p. 1396.)

In this context, we relied on two attorney fees cases (People v. Viray (2005) 134 Cal.App.4th 1186; People v. Lopez (2005) 129 Cal.App.4th 1508) and held that “claims... based on the insufficiency of the evidence... do not require assertion in the court below to be preserved on appeal.” (Pacheco, supra, 187 Cal.App.4th at p. 1397.)

But we also pointed out that the (1) criminal justice administrative fee was to cover “actual administrative costs” (Pacheco, supra, 187 Cal.App.4th at p. 1400), (2) probation fee was to cover “reasonable cost” of services and supervision after referral of the defendant to the probation officer for inquiry into ability to pay and notice of right to counsel and court hearing on ability to pay--defendant must waive right to a court determination, (id. at pp. 1400-1401), and (3) attorney fees was to cover “ ‘all or a portion of the cost’ ” (id. at p. 1398) after notice and hearing. We then held that (1) no evidence supported what were the “actual administrative costs” (id. at p. 1400), (2) no evidence supported that the “statutory procedure” for determining or waiving ability to pay was followed and the costs “cannot be made a condition of probation” (id. at p. 1401), and (3) no evidence supported that the “statutory directive” (id. at p. 1398) was met and “an order directing payment of attorney fees” may not be made a condition of probation (id. at p. 1399).

Pacheco is therefore readily distinguishable.

First, the statute in this case imposes a definitive fee (“shall order... a fine of ten dollars”) rather than an open-ended fee. Thus, defendant was on notice that the theft fine was in issue and he must make an inability-to-pay objection to its imposition. On the other hand, where a fee is open-ended, the People necessarily have an initial burden of proof and a defendant can necessarily rely on a failure of proof without having to object.

And second, the fees in Pacheco were independently erroneous regardless of whether substantial evidence supported an ability to pay. No evidence supported the amount of the administrative fee and the statutory procedures for imposing the probation and attorney fees were not followed. Moreover, the probation and attorney fees were erroneously imposed as conditions of probation.

We therefore follow Crittle.

The trial court orally imposed a $120 court security fee and a $120 conviction assessment fee. The parties agree that the correct amounts should be $180 rather than $120. Since the court minutes and abstract of judgment reflect the correct amounts of $180, the error is deemed corrected.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Elia, J., Grover, J.

Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Eby

California Court of Appeals, Sixth District
Feb 17, 2011
No. H035379 (Cal. Ct. App. Feb. 17, 2011)
Case details for

People v. Eby

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EWIN EBY, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Feb 17, 2011

Citations

No. H035379 (Cal. Ct. App. Feb. 17, 2011)