Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR231252
McGuiness, P.J.
Terrence William Hunt appeals from a judgment entered after a jury found him guilty of evading an officer with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)). He contends the trial court erred in ordering him to pay $200 for a presentence report and $300 per year for probation supervision costs. We reject the contention and affirm the judgment.
Factual and Procedural Background
On September 6, 2006, an information was filed charging appellant with evading an officer with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a), count 1), having a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1), count 2), carrying an unregistered loaded firearm (§ 12031, subd. (a)(1), count 3), and engaging in a speed contest (Veh. Code, § 23109, subd. (a), count 4). The information further alleged as to count one that appellant was armed with a handgun (§ 12022, subd. (a)(1)). Appellant pleaded not guilty to the charges and denied the firearm allegation. On October 11, 2006, appellant filed a motion to dismiss the information. The court granted the motion in part and dismissed counts 2 and 3.
All further statutory references are to the Penal Code unless otherwise stated.
The information was based on an incident that occurred on March 5, 2006. At trial, a California Highway Patrol officer testified he and another officer were watching traffic when they saw two cars driving along the freeway in excess of 100 miles per hour. One of the cars was a black Dodge Magnum (the Dodge). The officers, who were in uniform, gave chase in their marked patrol car and activated the patrol car’s lights and siren. The driver of the Dodge increased his speed to over 130 miles per hour, made several lane changes, and drove for some time with the Dodge’s exterior lights turned off. The driver then slowed the Dodge down to approximately 90 miles per hour and exited the freeway but was unable to negotiate the off-ramp turn and crashed the Dodge into an adjacent dirt field. The driver, identified in court as appellant, was immediately taken into custody. A jury found appellant guilty of evading an officer with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) but found not true the allegation that appellant was armed with a handgun (§ 12022, subd. (a)(1)).
Count 4 was apparently dismissed. The record does not reveal how or when this occurred.
The court sentenced appellant to prison for the midterm of two years, suspended imposition of sentence and placed him on formal probation for three years. As a condition of probation, the court ordered appellant to serve 312 days in jail. It also imposed the following fines and fees: “$200 pursuant to [section] 1202.4. [¶] $20 collection fee. [¶] $200 pursuant to [section] 1202.44 which is stayed pending successful completion of probation. [¶] $20 court security surcharge fee. [¶] Not as a condition of probation, but a fee associated with the privilege of being on probation, $300 per year pursuant to [section 1203.1b] while actively supervised, zero if in a banked status, same, not a condition of probation but a fee associated with the privilege [of] . . . being on probation. [¶] $200 for the pre-sentence report. [¶] Reserve jurisdiction over restitution. [¶] He is ordered to provide any financial information requested by his probation officer. [¶] He is to report to the Probation Department as directed for a financial evaluation, recommendation for his ability to pay costs, fines and restitution as may be appropriate in this case.”
Appellant had 312 days of credit at the time and was ordered immediately released pending any other holds.
Discussion
Appellant’s sole contention on appeal is that the trial court erred in ordering him to pay $200 for the presentence report and $300 per year for probation supervision costs because there is no evidence he was ever informed of his right to a hearing and determination of his ability to pay, or that he waived those rights. We conclude he has forfeited this claim.
Section 1203.1b, subdivision (a), provides that in any case in which a probation report is prepared and a defendant is granted probation, the probation officer shall make a determination of the defendant’s ability to pay all or some of the reasonable costs of preparing that report and of probation supervision. The section further provides: “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.” (§ 1203.1b, subd. (a).) Absent such a waiver, the court must conduct an evidentiary hearing on the defendant’s ability to pay. (§ 1203.1b, subd. (b).)
Generally, complaints about the manner in which a trial court makes or articulates its discretionary sentencing choices cannot be raised for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 355.) Likewise, conditions of probation may not be challenged on appeal unless an objection is made when the sentence is imposed. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Applying these principles to the imposition of section 1203.1b probation supervision fees, Division Two of this Court held in People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), 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.” (Valtakis, supra, 105 Cal.App.4th at p. 1072; see also People v Butler (2003) 31 Cal.4th 1119, 1130 (conc. opn. of Baxter, J.) [citing Valtakis with approval for the proposition that a claim that the record fails to demonstrate a defendant’s ability to pay a fine may not be raised for the first time on appeal].)
In Valtakis, the trial court imposed a $250 probation fee but the probation officer did not provide notice to the defendant of his right to a separate hearing on his ability to pay, and the trial court did not hold a separate hearing or make its own determinations. (Valtakis, supra, 105 Cal.App.4th at pp. 1070-1071.) Nevertheless, on appeal, those defects that resulted in imposition of a probation fee without a hearing or evidence of ability to pay were not found to result in an unauthorized sentence, “for a probation fee could have been lawfully imposed had an ability to pay appeared, a clearly fact-bound determination. ‘In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’ [citation], which is exactly the claim here: the probation fees, otherwise permitted, were procedurally flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of evidence that the defendant had the ability to pay). The unauthorized-sentence exception does not apply.” (Id. at p. 1072.) Valtakis further observed that cases have “uniformly held that defendants likewise cannot complain for the first time on appeal of restitution fines imposed without findings or evidence of ability to pay [citations], even when characterized as unauthorized due to legal error [citations].” (Ibid.)
Here, it is undisputed that appellant did not object when the trial court ordered him to pay $200 for the presentence report and $300 per year for probation supervision costs. Appellant acknowledges Valtakis’s holding that a defendant’s failure to object to noncompliance with the probation cost procedures of section 1203.1b waives the claim on appeal. Nevertheless, appellant contends he should be allowed to raise the claim for the first time on appeal because Valtakis “was wrongly decided.”
First, appellant asserts that Valtakis failed to recognize that the requirements set forth in section 1203.1b, including notice of a right to a hearing, are mandatory, not discretionary. He argues that “Thus, the decision to notify the defendant of his right to an ability to pay hearing under the statute is not a discretionary sentencing choice[,] nor is the court’s obligation to either conduct such a hearing or obtain a knowing and intelligent waiver of the defendant’s right to one.” As noted, however, Valtakis held: “ ‘In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’ [citation], which is exactly the claim here: the probation fees, otherwise permitted, were procedurally flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of evidence that the defendant had the ability to pay).” (Valtakis, supra, 105 Cal.App.4th at p. 1072.) In other words, Valtakis recognized that the notice and hearing requirements of section 1203.1b are mandatory, yet held that where a court has failed to follow those mandatory procedures, the resulting sentence is not an unauthorized sentence, but rather is a sentence “ ‘imposed in a procedurally or factually flawed manner’ ” that must first be challenged below. (Valtakis, supra, 105 Cal.App.4th at p. 1072.)
Second, appellant takes issue with Valtakis’s conclusion that permitting a defendant to complain for the first time on appeal that section 1203.1b was violated “would work results horribly at odds with the overarching cost conservation policy of the section.” (Valtakis, supra, 105 Cal.App.4th at p. 1075.) He states that conclusion is inconsistent with the Legislature’s act of adding the notice and hearing requirements to section 1203.1b, which increased costs by requiring trial courts to conduct a separate hearing on the defendant’s ability to pay. As Valtakis noted, however, section 1203.1b and other recoupment statutes “ ‘reflect a strong legislative policy in favor of shifting the costs stemming from criminal acts back to the convicted defendant’ and ‘ “ ‘replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.’ ” ’ ” (Valtakis, supra, 105 Cal.App.4th at p. 1073.) “To allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive.” (Id. at p. 1076.) Valtakis reasonably relied on the policy of conserving costs in concluding that a defendant is precluded from raising a violation of section 1203.1b for the first time on appeal. We agree with the court’s reasoning in Valtakis to find forfeiture here.
We also note that even if we reached appellant’s claim of error, we would hold it is not reasonably probable he would have obtained a more favorable result if the trial court had complied with section 1203.1b. (See Valtakis, supra, 105 Cal.App.4th at p. 1076 [applying Watson standard of harmless error (People v. Watson (1956) 46 Cal.2d 818, 836)].) Appellant does not claim on appeal that he is unable to pay $200 for the presentence report and $300 per year for probation supervision costs. The probation officer’s report shows that appellant immediately started working after graduating from high school. He had some skills as an auto mechanic and had experience working as a customer service representative, a stocker in a liquor store, and a file clerk for an insurance company. Prior to the instant incarceration, he was working as a loan officer for a mortgage company for about nine months and was in the process of trying to become an executive loan officer. As a loan officer, he was paid $8.50 per hour plus a 35 percent commission on all of his closed loans. He believed he would be able to get his job back upon his release from jail. (See People v. Staley (1992) 10 Cal.App.4th 782, 785 [“Ability to pay does not necessarily require existing employment or cash on hand”].) He was young and in good health and denied any past or current mental health issues. He stated he did not abuse alcohol or consume illegal drugs. He was living at his mother’s house and planned to return to her home after his release. The other fees he was ordered to pay, which were not stayed, totaled only $240. Under these circumstances, “It appears highly unlikely that a remand . . . would show him to have been unable to pay the [presentence report and probation supervision costs] even considering the $[240] in other fees also imposed.” (See Valtakis, supra, 105 Cal.App.4th at p. 1076.) There is no evidence of prejudice justifying a reversal of the fees or a remand to reassess appellant’s financial circumstances as of the time he was sentenced.
Disposition
The judgment is affirmed.
We concur: Pollak, J. Siggins, J.