Opinion
A130858
01-30-2012
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super.
Ct. No. SCUK-CRCR-10-10851)
The trial court placed appellant Juan Manuel Perez on probation after he was found guilty of making a criminal threat. (Pen. Code, § 422.) On appeal, he claims the court erred in imposing a court security fee as a condition of probation. He also argues there is insufficient evidence to support imposition of a presentence investigation report fee and a monthly probation supervision fee. We shall modify the judgment to clarify that the court security fee is imposed as a separate order and not as a condition of probation. In all other respects, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 2010, appellant threatened to kill his wife, who was in the process of pursuing a divorce. In an information filed April 15, 2010, the Mendocino County District Attorney charged appellant with making a criminal threat in violation of section 422. After a one-day trial, a jury found appellant guilty as charged.
Because this appeal is limited to sentencing issues, it is unnecessary to describe the crime or the procedural history of the case in further detail.
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At the sentencing hearing, the court suspended imposition of sentence and placed appellant on three years probation subject to certain terms and conditions. As relevant here, the court imposed a $40 court security fee (§ 1465.8, subd. (a)(1)) as a condition of probation. The court also ordered appellant to pay the following fees, among others, although not as a condition of probation: $690 as a presentence investigation report fee and $69 per month as a probation supervision fee. (§ 1203.1b.) In addition, the court ordered appellant to pay for "all financial obligations contained in [the] order at a minimum rate of $100.00 per month, or in amount to be determined by the Probation of Financial Officer." Neither appellant nor his counsel objected to any of the fines or fees imposed by the court.
Appellant filed a timely appeal from the judgment.
DISCUSSION
1. Court Security Fee
The trial court granted appellant probation on the condition that, among other things, he "pay a security fee {PC1465.8(a)(1)} in the amount of $40.00." Appellant contends it was error to impose a court security fee pursuant to section 1465.8 as a condition of probation, citing People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402-1403 (Pacheco). In Pacheco, the court modified the judgment to delete the court security fee as a condition of probation but clarified that the fee was properly imposed and affirmed as a separate order. (Id. at p. 1403.) Relying on Pacheco, appellant urges that we amend the judgment to make the court security fee an order separate and apart from the conditions of probation. The People agree with this recommended disposition. We likewise agree with appellant and shall modify the judgment accordingly. 2. Presentence Investigation Report Fee and Probation Supervision Fee Appellant argues there is insufficient evidence to support the imposition of the $690 presentence investigation report fee and the probation supervision fee of $69 per month. The challenged fees are authorized by section 1203.1b, which in general allows for recovery of reasonable costs incurred by the probation department, such as the cost of supervising probation and the cost of conducting a presentence investigation and preparing a presentence report. (§ 1203.1b, subd. (a).) Section 1203.1b, subdivision (a) provides, in relevant part, that the court "shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost" of the presentence investigation report and probation supervision. Appellant claims there is insufficient evidence to support the statutorily required determination that he is able to pay the fees imposed by the court.
As a preliminary matter, we must consider the effect of appellant's failure to object at sentencing to the imposition of the challenged fees. The People argue that the failure to object forfeits the claim on appeal, in accordance with the general doctrine governing forfeiture. (See People v. Scott (1994) 9 Cal.4th 331, 351-354; People v. Welch (1993) 5 Cal.4th 228, 232-237.) Appellant claims the error is not forfeited because he is challenging the sufficiency of the evidence.
"All 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' " are forfeited unless first raised in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) This rule applies with equal force to court-imposed fees: "[S]entencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant's ability to pay a fine [citations] . . . ." (People v. Butler (2003) 31 Cal.4th 1119, 1130-1131 (conc. opn. of Baxter, J.); see also People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 (Gibson); People v. McMahan (1992) 3 Cal.App.4th 740, 750.)
In Gibson, supra, 27 Cal.App.4th at p. 1467, the defendant challenged restitution fines on the basis that he had no assets or earnings to pay the fines. The court held the defendant waived his claim by failing to object at trial. (Id. at p. 1468.) The court explained that "[t]he purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided. [Citation.]" (Ibid.) The court further explained: "[B]ecause the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citations.] A challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial." (Id. at pp. 1468-1469.)
The Gibson court went on to note that judicial economy and the need for the orderly and efficient administration of law justified application of the forfeiture doctrine to court-imposed fines and fees. (People v. Gibson, supra, 27 Cal.App.4th at p. 1469.) These concerns were echoed in People v. Valtakis, supra, 105 Cal.App.4th at p. 1076, in which the court stated: "Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silently by as the court imposes a $250 [probation] 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. It would also be completely unnecessary, for the Legislature has provided mechanisms in section 1203.1b for adjusting fees and reevaluating ability to pay without an appeal anytime during the probationary period [citation] or the pendency of any judgment [citation]."
In this case, the probation officer's report recommended imposing the fees appellant now challenges on appeal. If appellant believed he lacked the ability to pay the fees, he had the opportunity to object at sentencing. Had he done so, he could have explained his specific financial circumstances, and the district attorney or probation officer could have responded or offered additional information to support the proposed fees. As it was, the People were deprived of the opportunity to cure any purported deficiency in the evidence supporting imposition of the fees. Under these circumstances, principles of fairness and judicial economy dictate that appellant has forfeited his claim of error by failing to object at trial.
Appellant does not discuss or distinguish any of the foregoing authorities but instead relies solely on Pacheco, supra, 187 Cal.App.4th at p. 1397, which held that claims based on insufficiency of the evidence need not be raised in the trial court to be preserved for appeal. In Pacheco, the defendant challenged a number of fees, including a monthly probation fee imposed under section 1203.1b. He claimed there was insufficient evidence to support a determination that he had the ability to pay the fees. (Ibid.) In concluding the claims were preserved for appeal despite the lack of objection at trial, the Pacheco court relied exclusively on two cases in which a defendant's failure to challenge an order directing the payment of appointed counsel's fees was deemed not to have been forfeited. (Ibid.) In one of the cited cases, the appointed attorney did not object to his own fees, and the court held the insufficiency of the evidence could be challenged for the first time on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1214.) In the other cited case, the court addressed whether the relevant statutory provision authorizing fee reimbursement (§ 987.8) required the court to make an express finding of ability to pay before ordering a state prisoner to reimburse the costs of his or her defense. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) In reliance on the general rule that, in the absence of a guilty plea, a defendant can challenge the sufficiency of the evidence to support a finding for the first time on appeal, the court discussed but did not reach the attorney fee issue, which was rendered moot by the reversal of the defendant's convictions on other grounds. (Ibid.)
We are not persuaded by the reasoning of Pacheco or the two attorney fee reimbursement cases on which it relies for its nonforfeiture holding. In one of the cases relied upon by Pacheco, the court distinguished published authority supporting forfeiture, reasoning that the forfeiture doctrine cannot be extended to preclude objections to an order for reimbursement of appointed counsel's fees, "for the reason that unless the defendant has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel's failure to object to an order reimbursing his own fees." (People v. Viray, supra, 134 Cal.App.4th at p. 1214.) The defendant's appointed 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. However, there is no such potential compromise of a defendant's interests when the objection is directed at a probation fee. Thus, Pacheco relies on authority that is limited to the unique situation of reimbursement of appointed counsel's fees. Further, the holding in Pacheco is inconsistent with the line of cases discussed earlier establishing that sentencing determinations may not be challenged for the first time on appeal, even if the challenge is to the sufficiency of evidence supporting a defendant's ability to pay a fine or fee. Because Pacheco presents no reason to reject this line of cases, we decline to follow its nonforfeiture holding.
We conclude appellant forfeited his sufficiency of the evidence claims by failing to object to the challenged probation fees at the time of sentencing. He has offered no argument that convinces us to depart from the rule applying the forfeiture doctrine under these circumstances.
DISPOSITION
The judgment is modified to delete the $40 court security fee (§ 1465.8, subd. (a)(1)) imposed as a condition of probation and to clarify that the fee is imposed as an order separate and distinct from the terms of probation. In all other respects, the judgment is affirmed.
McGuiness, P.J.
We concur:
Siggins, J.
Jenkins, J.