Opinion
G052837
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. CESAR PAZ, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF1341) OPINION Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Cesar Paz appeals from an order requiring him to pay the costs of preparing his probation and sentencing report (the Report). Paz argues the trial court erred in ordering him to pay the costs of preparing the Report. The Attorney General concedes the error, assuming we conclude the claim is preserved for appellate review. We conclude it is and reverse and remand the matter for further proceedings.
On June 9, 2016, we granted Paz's motion for judicial notice of the Report filed on November 14, 2014. --------
FACTS
This court affirmed Paz's conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), all further statutory references are to the Penal Code), and three-year prison sentence. (People v. Paz (Aug. 28, 2015, G051044) [nonpub. opn.].) This court granted Paz permission to file an untimely notice of appeal, and he did so.
DISCUSSION
Procedural History
In the Report, the probation officer stated she was unable to determine Paz's ability to pay because "[h]e failed to cooperate with a financial evaluation for a determination of his ability to pay the cost of the . . . [R]eport." Consequently, the probation department recommended the trial court conduct a "[f]inancial [h]earing to determine [Paz's] ability to pay for the cost of the . . . Report in the amount of $2,762.17."
At the financial hearing, the trial court found "the Department of Corrections [DOC] will be determining whether or not . . . Paz has the ability to pay any fines and fees or costs ordered by this court." The court ordered Paz to "pay the cost of the . . . [R]eport of $2,762.17, and that is to be collected by the [DOC]." Defense counsel did not object.
Law
Section 1203.1b, subdivision (a), states that when a defendant suffers a conviction and is the subject of a probation and sentencing report, "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" report.
Section 1203.1b, subdivision (b), provides as follows: "When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative."
In a recent trilogy of cases, our Supreme Court has held the forfeiture rule applies in various circumstances in the sentencing context—People v. Trujillo (2015) 60 Cal.4th 850, 853 (forfeiture rule applies to probation supervision fees and presentence investigation fees), People v. Aguilar (2015) 60 Cal.4th 862, 864 (forfeiture rule applies to probation fees and reimbursement of attorney fees), and People v. McCullough (2013) 56 Cal.4th 589, 597 (McCullough) (forfeiture rule applies to jail booking fees).
However, an earlier case from our Supreme Court, People v. Butler (2003) 31 Cal.4th 1119 (Butler), is instructive. In Butler, the court held defendant had not waived his right to claim on appeal there was insufficient evidence to support an order for HIV testing. The court stated: "'Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception.' [Citation.] This principle of appellate review is not limited to judgments . . . ." (Id. at p. 1126, fn. omitted.)
We acknowledge our Supreme Court has stated a "[d]efendant may not 'transform . . . a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.]" (McCullough, supra, 56 Cal.4th at p. 597.) However, the Attorney General concedes this case is more like Butler, supra, 31 Cal.4th 1119, and remand is necessary. The Attorney General does so because the trial court apparently delegated the ability-to-pay determination to the DOC, and the court did not make such a finding before ordering Paz to pay $2,762.17 to the DOC. The Attorney General could not cite to any authority, and we could find none, that allows the court to delegate this determination to the DOC. (People v. Wilson (1982) 130 Cal.App.3d 264, 269 [court may not delegate ability-to-pay determinations].) As in Butler, the factual predicate of the order, that is, Paz's ability to pay, defines the trial court's substantive authority to make the order. Thus, Paz did not waive his claim of factual insufficiency by failing to object in the trial court. The matter is remanded for the trial court to determine whether Paz has the ability to pay for the costs of the Report as required by section 1203.1b.
DISPOSITION
The order is reversed, and the matter is remanded.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.