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People v. Lautaha

California Court of Appeals, Sixth District
Apr 28, 2009
No. H033581 (Cal. Ct. App. Apr. 28, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TOMASI LAUTAHA, Defendant and Appellant. H033581 California Court of Appeal, Sixth District April 28, 2009

NOT TO BE PUBLISHED

Santa Clara County, Super. Ct. No. BB834733

Bamattre-Manoukian, ACTING P.J.

I. INTRODUCTION

As part of a negotiated plea agreement, defendant Tomasi Lautaha pleaded no contest to theft or embezzlement from an elderly person (Pen. Code, § 368, subd. (d)), first degree burglary of an elderly person present in the residence (§§ 459, 667.5, subd. (c)(21), 667.9, subd. (a)), and fraudulent use of a contractor’s license number (Bus. & Prof. Code, § 7027.1, subd. (a)). Imposition of sentence was suspended and defendant was placed on probation with various terms and conditions.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends that the judgment should be reversed because the trial court erroneously imposed probation fees as a condition of probation. For reasons that we will explain, we find appropriate the People’s concession that payment of probation fees may not be made a condition of probation, and we will order the judgment modified accordingly. As modified, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2008, defendant was charged by complaint with four felony counts, theft or embezzlement from an elderly person (§ 368, subd. (d); count 1); first degree burglary of an elderly person present in the residence (§§ 459, 667.5, subd. (c)(21), 667.9, subd. (a); count 2); grand theft (§§ 484, 487, subd. (a); count 3) and fraudulent use of a contractor’s license (Bus. & Prof. Code, § 7027.1, subd. (a); count 4). He was also charged with three misdemeanor counts, including advertising without a lawful license (Bus. & Prof. Code, § 7027.1, subd. (a); count 5); excessive down payment in contract (Bus. & Prof. Code, § 7159, subd. (d); count 6); and contracting without a license (Bus. & Prof. Code, § 7028, subd. (a); count 7).

Thereafter, defendant entered into a negotiated plea agreement. On September 9, 2009, defendant pleaded no contest to count 1 (theft or embezzlement from an elderly person), count 2 (first degree burglary of an elderly person present in the residence), and count 4 (fraudulent use of a contractor’s license) in exchange for a sentence of 10 months in the county jail. Counts 3, 5, 6 and 7 were dismissed at the sentencing hearing held on October 9, 2008.

At the sentencing hearing, the trial court suspended imposition of the 10-month county jail sentence and placed defendant on formal probation for three years. Among other orders, the trial court ordered defendant to pay restitution of $6,250 to the victim and imposed and suspended a restitution fine of $220. The court also ordered defendant to pay various fines and fees, including a court security fee of $60, a “theft fine” of $10 plus penalty assessment, a $450 presentence investigation fee, and a probation supervision fee not to exceed $64 per month. Immediately after ordering payment of these fines and fees, the trial court asked defendant, “[d]o you understand and accept these terms and conditions of probation?” Defendant replied, “Yes, your Honor.”

Section 1202.5, subdivision (a) provides, “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.”

Defendant subsequently filed two notices of appeal. The first notice of appeal, filed on October 27, 2008, indicated that defendant challenged the validity of his plea and requested a certificate of probable cause, which the trial court denied in a November 13, 2009 order. The second notice of appeal, filed on November 3, 2008, states that defendant’s appeal is based upon the sentence and other matters occurring after the plea and does not challenge the validity of the plea.

III. DISCUSSION

On appeal, defendant argues that the trial court erred because the court’s October 9, 2008 order requires him to pay probation fees as a condition of probation, including a $450 presentence investigation fee and a probation supervision fee not to exceed $64 per month. According to defendant, the trial court did not have the authority to order him to pay probation fees as a condition of probation, and the lack of a defense objection at the time of sentencing did not forfeit the issue because a defendant need not object to an unauthorized sentence. Defendant therefore seeks modification of the probation order to eliminate payment of probation fees as a condition of probation.

The People concede that the trial court is not authorized to impose payment of probation fees as a condition of probation. However, they believe that the record is unclear as to whether the trial court actually imposed probation fees as a condition of probation in this case. Nevertheless, the People state that “[s]hould this court deem it advisable to recognize that the probation fees are part of the judgment but not a condition of probation, we have no objection.”

As a threshold matter, we find appropriate the People’s implied concession that trial counsel’s failure to object did not result in a forfeiture of defendant’s claim that payment of probation fees may not be imposed as a condition of probation. The general rule is that a condition of probation cannot be challenged on appeal unless objected to at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228, 235; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071.) However, the California Supreme Court has established an exception to the rule that only “ ‘claims properly raised and preserved by the parties are reviewable on appeal’ ” for claims of unauthorized sentences or sentences entered in excess of jurisdiction. (People v. Smith (2001) 24 Cal.4th 849, 852.) “Because these sentences ‘could not lawfully be imposed under any circumstances in the particular case’ [citation], they are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ ” (Ibid.) Here, defendant asserts that the trial court does not have the authority to order payment of probation fees as a condition of probation. Defendant may therefore raise the issue for the first time on appeal.

We also find appropriate the People’s express concession that payment of probation fees may not be ordered as a condition of probation. Section 1203.1b, subdivision (a), provides that a defendant, depending upon his or her ability to pay, may be ordered to pay “all or a portion of the reasonable cost of any probation supervision... [and] of conducting any preplea investigation and preparing any presentence report....” However, section 1203.1b does not authorize payment of either costs or fees as a condition of probation. “These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. ([§] 1203.1b, subd. (d).)” (People v. Washington (2002) 100 Cal.App.4th 590, 592.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of probation fees or costs. (People v. Hart (1998) 65 Cal.App.4th 902, 907; see also People v. Bradus (2007) 149 Cal.App.4th 636, 641-642; People v. O'Connell (2003) 107 Cal.App.4th 1062, 1068; People v. Hall (2002) 103 Cal.App.4th 889, 892; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321; People v. Washington, supra, 100 Cal.App.4th at pp. 592-593.)

Section 1203.1b, subdivision (a), provides in pertinent part, “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 any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report....”

Section 1203.1b, subdivision (d), provides in pertinent part, “Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.”

Having reviewed the record on appeal, we agree with the People that the record is not entirely clear as to whether the trial court imposed payment of probation fees as a condition of probation. At the conclusion of the sentencing hearing held on October 9, 2008, the trial court stated, “You will pay a court security fee of sixty dollars.... Pay ten dollars in theft fine, plus penalty assessment and four hundred and fifty dollars for the pre-sentence investigation fee and also sixty four dollars... as a probation supervision fee not to exceed sixty four dollars a month, and, sir, do you understand and accept these terms and conditions of probation?”

We find that the trial court’s reference to “the terms and conditions of probation,” following the court’s recitation of the presentence investigation fee and the probation supervision fee, could possibly be interpreted as imposing these fees as a term or condition of probation. Because the trial court is not authorized to condition probation upon the payment of a presentence investigation fee or a probation supervision fee, modification of the conditions of probation is appropriate. We will direct the trial court to modify the probation order by deleting the conditions that defendant pay a $450 presentence investigation fee and a probation supervision fee not to exceed $64 per month. and to enter a separate order directing the payment of these fees. (People v. Hart, supra, 65 Cal.App.4th at p. 907.)

We observe that the clerk’s minutes from the sentencing hearing of October 9, 2008, do not indicate whether the fees were imposed as a condition of probation.

IV. DISPOSITION

The case is remanded to the trial court to amend the judgment by deleting that portion of the judgment (order granting probation) directing defendant to pay probation fees as a condition of probation; and to enter a separate order pursuant to section 1203.1b, directing the payment of such fees. As modified, we will affirm the judgment.

WE CONCUR: McAdams, J., duffy, J.


Summaries of

People v. Lautaha

California Court of Appeals, Sixth District
Apr 28, 2009
No. H033581 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Lautaha

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TOMASI LAUTAHA, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Apr 28, 2009

Citations

No. H033581 (Cal. Ct. App. Apr. 28, 2009)