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People v. Lewis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
A132446 (Cal. Ct. App. Jan. 31, 2012)

Opinion

A132446

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. DOMINIC LERON LEWIS, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. C163824B)

Defendant Dominic Lewis entered a guilty plea to attempted robbery and admitted to an enhancement of the offense due to his personal use of a firearm. The court sentenced Lewis to 11 years, 4 months in prison. The court also ordered Lewis to pay certain fines and fees including a $250 probation investigation fee. Lewis disputes the probation investigation fee, claiming that it was imposed in violation of his right to a judicial determination of his ability to pay. We conclude that Lewis forfeited his right to contest the fee on appeal by failing to object to the fee at sentencing. Thus we affirm the judgment.

PROCEDURAL HISTORY

Lewis was charged with carjacking and attempted second degree robbery, enhanced for his personal use of a firearm in connection with the attempted robbery within the meaning of Penal Code sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (g). Pursuant to a negotiated disposition, Lewis pleaded guilty to the attempted robbery and admitted the gun use enhancement. The carjacking charge was dismissed. On June 17, 2011, the trial court sentenced Lewis to the agreed upon terms of 16 months for attempted robbery, plus 10 years for his personal use of a firearm, for a total prison term of 11 years, 4 months. The court also imposed restitution and suspended parole revocation fines of $2,000 each. Additionally, the court assessed a $40 court security fee, a $30 criminal conviction assessment, and a $250 probation investigation fee. Lewis timely appealed.

FACTUAL BACKGROUND

The afternoon of March 18, 2010, Timothy Jones and his brother Jason were sitting in Timothy's car near the A-1 Springs auto shop at the corner of 101st Avenue and International Boulevard in Oakland. They were approached by four African-American men who drew guns on them. Two of the men approached Timothy's driver's side door and the other two approached Jason on the passenger side. One of the men reached through the driver's side window, put the gun in Timothy's stomach, and told him, "you know what time it is." Fearing for his life, Timothy got out of the car.

The two men on the passenger side ordered Jason out of the car and demanded that he give them everything in his pockets. After both Jason and Timothy were out of the car, one of the African-American men got in and drove it away. The other three left in a Jeep.

Timothy flagged down an Oakland police officer and explained the circumstances of his carjacking. The officer successfully pursued the stolen vehicle and apprehended the driver, who was later identified as Eric Lee. Jason subsequently viewed a photo lineup, where he identified Lewis as a participant in the crime who went through his pockets.

Following Lewis's guilty plea, the probation officer's report was filed with the court and received by both the prosecution and defense. On June 17, 2011, at the sentencing hearing, defense counsel confirmed receipt of the probation officer's report without objection. The report recommended a probation investigation fee of $250. The report also reflects that the probation officer advised Lewis of the amount of the recommended fee as well as his right to have a hearing represented by counsel on his ability to pay. The report states that Lewis was cooperative and forthcoming during the interview with the probation officer. The record of his plea reflects that Lewis understood he would be assessed various fines and fees, and that he was aware of the strike implications of his plea. There is nothing in the record that indicates Lewis was unaware of his rights or the consequences of his plea.

DISCUSSION

Penal Code section 1203.1b, subdivision (a) authorizes the court to impose certain costs of probation, including presentence investigation reports. Section 1203.1b also commands the probation officer to make a determination of the defendant's ability to pay reasonable costs of conducting any presentence investigation and preparing any presentence report. Furthermore, "[t]he 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." Section 1203.1b, subdivision (a) requires that, "[t]he 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." When the defendant fails to waive that right, the probation officer shall refer the matter to the court for a hearing to determine the amount and manner of payment. (§ 1203.1b, subd. (b).)

Further statutory references are to the Penal Code.

Lewis contends that the probation investigation fee in this case was erroneously imposed because the court had no substantial evidence on which to find that he had the ability to pay it. However, Lewis did not object to the imposition of this fee at sentencing. The issue, then, is whether Lewis's failure to object forfeits his claim on appeal, in accordance with the general rules of forfeiture. (See People v. Welch (1993) 5 Cal.4th 228, 232-37.) Lewis argues that because he is challenging the sufficiency of the evidence, his claim should not be deemed forfeited.

He bases his argument on People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400-1401 (Pacheco), where the Sixth District struck a monthly probation fee, and other fines and fees, on the basis of insufficient evidence, despite no objection at trial. But the Pacheco court applied two cases where a defendant's failure to challenge the fees of appointed counsel were deemed not to have been forfeited. (Id. at p. 1397.) In one, the attorney did not object to his own fees, and the court held the insufficiency of evidence of the defendant's ability to pay attorney fees could be challenged for the first time on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1214 (Viray).) In the other, a statutory provision (§ 987.8) required an express finding before ordering a defendant to pay attorney fees. In reliance on the general rule that, in the absence of a guilty plea, a defendant can challenge insufficiency of evidence to support a finding for the first time on appeal, the court discussed but did not reach the fee issue. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 (Lopez).) Pacheco, Lopez and Viray are not persuasive.

The reason to excuse a defendant's failure to object to counsel fees is obvious. Counsel, who is expected to make the objection, has a stake in a fee reimbursement order. In such cases, one can excuse a defendant's possible waiver. But there is no such potential compromise of a defendant's interests when the objection is directed at a probation fee. Moreover, the insufficient evidence exception to the forfeiture rule that Lewis relies upon here does not generally apply in a sentencing context. The failure of a sentencing court to properly make or articulate its discretionary sentencing choices may not be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.) The forfeiture rule applies and will bar a challenge to the evidentiary basis for court imposed fees unless first raised in the trial court. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; see also People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [considerations of fairness and orderly and efficient administration of the law warrant application of the forfeiture doctrine to bar substantial evidence challenge to the amount of a restitution fine].) Lewis forfeited his right to challenge the probation report fee by his failure to object to it in the trial court. He presents no argument that convinces us to depart from the application of the forfeiture doctrine.

Moreover, Pacheco is distinguishable on its facts. Lewis admits that he and his counsel received a copy of the probation officer's report. In two separate places, the report reflects that "[t]he probation officer is recommending the defendant pay a Probation Investigation Fee of $250 pursuant to section 1203.1b. The defendant has been advised of the amount and of the right to have a court hearing with counsel concerning his ability to pay." At sentencing, the court confirmed that counsel received the report, and imposed the $250 fee. At all times in the proceedings, it appears from the record that Lewis understood his rights and the consequences of his plea. He addressed the court and spoke out on his own behalf when he had a question about the strike consequences of his plea, and the probation officer described him as cooperative and forthcoming during his interview, even though as customary on advice of counsel, he refused to answer questions concerning his crime. Thus, the situation here is different from the one in Pacheco, where there was no evidence that the probation department advised the defendant of his right to a hearing on his ability to pay or that the defendant waived that right. (People v. Pacheco, supra, 187 Cal.App.4th at pp. 1392, 1401.) Nothing in this record leads us to conclude Lewis's apparent silence in response to his probation officer's advisement, and his counsel's silence at sentencing, was not a knowing and intelligent choice.

DISPOSITION

The judgment is affirmed.

___________________________

Siggins, J.
We concur:

___________________________

McGuiness, P.J.

___________________________

Jenkins, J.


Summaries of

People v. Lewis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
A132446 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Lewis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DOMINIC LERON LEWIS, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Jan 31, 2012

Citations

A132446 (Cal. Ct. App. Jan. 31, 2012)