Opinion
A147065
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. PAULINE LAURIE PAVON, Defendant and Appellant.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
BY THE COURT:
Appellant Pauline Laurie Pavon's petition for rehearing, filed on February 2, 2017, is denied. The opinion filed on January 20, 2017, is modified as follows: Page 4, paragraph 2, sentence 4: Delete the sentence "Pavon's monthly income exceeded her monthly expenses."
This modification does not affect the judgment. Dated: __________
/s/_________, P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR939697)
Pauline Laurie Pavon pled no contest to willfully inflicting corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)) and the trial court suspended imposition of sentence and placed Pavon on probation. As conditions of probation, the court imposed a criminal conviction assessment (Gov. Code, § 70373) and a court operations assessment (§ 1465.8). The court also ordered Pavon to pay various fines and fees, including a domestic violence fee (§ 1203.097), a restitution fine (§ 1202.4), and a criminal justice administrative fee (Gov. Code, § 29550).
All undesignated statutory references are to the Penal Code.
Pavon appeals. She contends: (1) the criminal conviction and court operations assessments could not be imposed as conditions of probation; and (2) trial counsel rendered ineffective assistance by failing to request an ability to pay hearing on the domestic violence and criminal justice administrative fees, and the restitution fine.
We modify the sentencing minute order regarding the criminal conviction and court operations assessments (Gov. Code, § 70373; § 1465.8). In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Pavon with elder abuse (§ 368, subd. (b)(1)), willfully inflicting corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)), and misdemeanor battery on an elder or dependent adult (§ 368, subd. (c)). In November 2015, Pavon pled no contest to willfully inflicting corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)). The probation report recommended the assessments, fees, and fine at issue. According to the probation report, Pavon had an associate degree in accounting and last worked in the hospitality industry in 2009. Pavon was in "good" physical health but reported suffering from Post-Traumatic Stress Disorder and drinking alcohol and smoking marijuana daily. At the time of sentencing, Pavon received $975 per month in SSDI benefits and had monthly expenses of $770. Pavon had personal property worth $1,000 and debt of $1,400.
At the December 2015 sentencing hearing, the court suspended imposition of sentence and placed Pavon on probation for three years. The court ordered Pavon to spend 364 days in county jail, with credit for time served. As conditions of probation, the court imposed a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8). The court also ordered Pavon to pay a $500 domestic violence fee (§ 1203.097), a $90 criminal justice administrative fee (Gov. Code, § 29550), and a $1,200 restitution fine (§ 1202.4) in addition to the assessments imposed as conditions of probation. Pavon's counsel stipulated to the probation report being "received as evidence" and did not object to the assessments, fees, or fine.
DISCUSSION
I.
The Criminal Conviction and Court Operations Assessments Cannot Be
Imposed as Conditions of Probation
Pavon contends the court erred by imposing the criminal conviction and court operations assessments as conditions of probation. The Attorney General agrees the assessments should not be imposed as conditions of probation because they are collateral to the crime and not oriented toward rehabilitation. (People v. Kim (2011) 193 Cal.App.4th 836, 842-843; People v. Soto (2016) 245 Cal.App.4th 1219, 1237.) According to the Attorney General, the assessments should be "separate orders of the court entered at judgment." We agree. The appropriate remedy is to modify the order granting probation to clarify that payment of these collateral fees is imposed as a separate order. (See, e.g., People v. Kim, supra, 193 Cal.App.4th at pp. 847-848.) Therefore, the sentencing minute order should be modified to clarify that the criminal conviction (Gov. Code, § 70373) and court operations assessments (§ 1465.8) are imposed as separate orders and not probation conditions.
II.
Pavon's Ineffective Assistance of Counsel Claim Fails
Pavon claims trial counsel rendered ineffective assistance by failing "to request an ability to pay determination" for the $500 domestic violence fee (§ 1203.097), the $90 criminal justice administrative fee (Gov. Code, § 29550), and the $1,200 restitution fine (§ 1202.4). To demonstrate ineffective assistance of trial counsel, Pavon must show counsel's representation fell below prevailing professional norms and she was prejudiced by that deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) To show prejudice, Pavon must show a reasonable probability she would have received a more favorable result had trial counsel's performance not been deficient. (Ibid.) "'Surmounting Strickland's high bar is never an easy task.'" (Harrington v. Richter (2011) 562 U.S. 86, 105.)
Pavon claims there was "no plausible, tactical reason" for trial counsel's failure to request an ability to pay hearing, and that there is a reasonable probability the fees and the fine would have been "significantly reduced or waived" had counsel requested such a hearing. We are not persuaded. No ability to pay hearing was required before the court imposed the domestic violence fee. When the court places a defendant on probation for specified domestic violence crimes, section 1203.097 requires the court to impose a minimum payment. The statute provides in relevant part: "If a person is granted probation . . . the terms of probation shall include all of the following . . . [¶] A minimum payment by the defendant of a fee of five hundred dollars ($500) to be disbursed as specified in this paragraph. If, after a hearing in open court, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee. If the court exercises its discretion to reduce or waive the fee, it shall state the reason on the record." (§ 1203.097, subd. (a)(5)(A).) We interpret this statutory language to mean that imposition of the fee is mandatory unless the defendant makes a showing of her inability to pay. (See People v. McMahan (1992) 3 Cal.App.4th 740, 749.) Had the Legislature intended to require the court to make a determination of the defendant's ability to pay before making its order, it could have used language such as "provided" the court makes a determination or "subject to" the court's determination. (Ibid.)
An ability to pay objection is forfeited in the absence of an objection in the trial court. (People v. McCullough (2013) 56 Cal.4th 589, 596-597; People v. Trujillo (2015) 60 Cal.4th 850, 858-859.) --------
Even if an ability to pay determination was required before the court imposed the domestic violence fee, trial counsel could have reasonably determined a request for such a determination would have been unsuccessful in light of the evidence of Pavon's financial condition. We disagree with Pavon's claim that the "probation report provides no information showing [her] ability to pay" the fees and fine. The probation report noted Pavon's educational background, her employment history, her monthly income, her assets and debt, and her physical condition. Pavon's monthly income exceeded her monthly expenses. Pavon was not working, nor was she wealthy, but "[a]bility to pay does not necessarily require existing employment or cash on hand." (People v. Staley (1992) 10 Cal.App.4th 782, 785.) That payment of the domestic violence fee may be difficult for Pavon to pay does not compel the conclusion she lacks the ability to pay. (See People v. McCullough, supra, 56 Cal.4th at p. 597 [suggesting "[v]irtually anything in the record could support the ability to pay a fee . . . age and health, education, . . . assets, and any other sources of income"].)
We reach the same conclusion regarding the criminal justice administrative fee imposed pursuant to Government Code section 29550, which provides in relevant part: "When the court has been notified in a manner specified by the court that a criminal justice administrative fee is due the agency: [¶] . . . [¶] The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administrative fee, including applicable overhead costs." (Gov. Code, § 29550, subd. (d)(2).) Pavon faults trial counsel for not requesting an ability to pay hearing before the court imposed the criminal justice administrative fee, but she does not explain why the language in Government Code section 29550 required the court to determine her ability to pay before imposing the fee. The only case Pavon cites — People v. Le (2006) 136 Cal.App.4th 925 — does not concern imposition of a criminal justice administrative fee. In any event, trial counsel could have determined an objection based on Pavon's inability to pay would have been futile. "'Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.'" (People v. Stratton (1988) 205 Cal.App.3d 87, 97.)
Nor was trial counsel ineffective for failing to request a determination regarding Pavon's ability to pay the $1,200 restitution fine (§ 1202.4). Section 1202.4 requires the court to impose a restitution fine when the defendant is convicted of a crime. (§ 1202.4, subds. (a)(1), (b).) In 2015, when Pavon committed the crime, the statutory minimum restitution fine was $300, and the maximum was $10,000. (§ 1202.4, subds. (b)(1), (2).) "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of" the statutory minimum. (§ 1202.4, subd. (c); see also People v. Covarrubias (2016) 1 Cal.5th 838, 935.) In light of Pavon's financial condition, trial counsel could have reasonably concluded the amount of the restitution fine did not warrant an ability to pay objection.
We reject Pavon's claim of ineffective assistance of trial counsel.
DISPOSITION
The December 7, 2015 sentencing minute order is modified to reflect that the $30 criminal conviction assessment (Gov. Code, § 70373) and the $40 court operations assessment (Pen. Code, § 1465.8) are separate orders and not conditions of probation. The trial court is directed to prepare a new sentencing minute order, and, if appropriate, a new abstract of judgment, and to forward the new abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Jones, P.J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.