Opinion
H040800
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ARIAS PLACIDO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1347923)
Defendant Miguel Arias Placido pleaded no contest to assault with intent to commit rape, a registrable sex offense, and was placed on probation for three years, subject to various conditions.
Placido contends that the record is unclear whether the trial court intended to impose a probationary term of three years or two years.
On appeal, Placido challenges the probation condition requiring him to waive his privilege against self-incrimination. He also contends that the trial court erred in (1) imposing a monthly probation supervision fee, without determining that he had the ability to pay and given insufficient evidence in the record of his ability to pay, and (2) imposing "sex offender management program participation fees" without determining the amount. He further contends there are errors in the sentencing minute order that require correction.
As discussed in more detail below, Placido concedes that several of his claims on appeal are now moot.
We find that the appeal is moot with respect to the challenged probation condition. We further find that Placido forfeited any claim of error with respect to the fees order. Although Placido is no longer on probation, we find that a correction to the minute order is warranted. Accordingly, we will order an amendment to the minute order and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Placido was charged with one count of assault with intent to commit rape. (Pen. Code, § 220, subd. (a)(1).) He pleaded no contest to the assault with intent to commit rape charge pursuant to a plea agreement.
Unspecified statutory references are to the Penal Code.
On March 7, 2014, the trial court sentenced Placido to prison for two years, suspended execution of that sentence, and placed him on probation "for three years—the two year term." The minute order from the sentencing hearing reflects a three-year term of probation.
As a condition of probation, the trial court ordered Placido to participate in a sex offender management program pursuant to section 1203.067, subdivision (b), including—over defense objections—on condition that he "waive any privilege against self-incrimination and participation in polygraph examinations . . . ." (§ 1203.067, subd. (b)(3).)
In addition, the court imposed various fines and fees, including a probation supervision fee of up to $110 per month and unspecified "sex offender management program participation fees." The trial court noted Placido's "homeless status" at the time of the offense. Placido did not object to the imposition of fees.
Placido timely appealed the probation order and judgment.
II. DISCUSSION
Following the California Supreme Court's decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia), we requested supplemental briefing from the parties regarding whether the issues raised in this appeal were moot. In his supplemental letter brief, Placido acknowledges that Garcia forecloses his constitutional challenge to the probation conditions under section 1203.067, subdivision (b)(3). He further concedes that the challenge to the probation conditions, as well as his claim concerning the length of the probation term, are moot because he is no longer on probation. The Attorney General did not submit a supplemental letter brief.
The remaining issues are whether (1) the trial court erred in imposing the probation supervision and sex offender management group participation fees, and (2) the minute order should be corrected to reflect suspended execution of sentence.
A. PROBATION SUPERVISION AND SEX OFFENDER MANAGEMENT PROGRAM FEES
The trial court at sentencing imposed fines and fees, including "a probation supervision fee not to exceed $110 a month" and "sex offender management program participation fees as determined by the Court, this pursuant to Section 1203.067(c) of the Penal Code."
The trial court did not reference the statutory authority for the probation supervision fee it imposed. For purposes of this analysis, we proceed under Placido's assumption that the fee was imposed pursuant to section 1203.1b (permitting a court to order a defendant placed on probation to bear all or a portion of the reasonable cost of probation supervision, subject to a determination of the defendant's ability to pay such costs). (§ 1203.1b, subds. (a), (b).)
Placido contends that the trial court erred in imposing the probation supervision fee and sex offender management group participation fee without assessing his ability to pay. He maintains there was insufficient evidence that he had the ability to pay, given the evidence before the court that he was living with the victim because he was homeless, had worked as a laborer prior to his arrest, and had a three-year-old son. Placido further contends that it was error for the court to impose the sex offender management group participation fee without determining the fee amount.
The People respond that Placido forfeited any challenge to these fees by failing to object at sentencing. Placido concedes in his reply brief that his challenge to the probation supervision fee is forfeit, based on two Supreme Court decisions that issued after the initial briefing in this case: People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo) and People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar). He maintains, however, that whether forfeiture also applies to his claim concerning the unspecified amount of sex offender management group participation fees remains an open question.
We believe that following Trujillo and Aguilar, Placido's failure to object to the fees imposed at sentencing on any ground now advanced on appeal is dispositive. In Trujillo, the court reviewed the imposition of a probation supervision fee absent a finding of the defendant's ability to pay, as required by section 1203.1b. (Trujillo, supra, 60 Cal.4th at pp. 853-854.) The court held that the defendant forfeited the ability to challenge imposition of the probation supervision fee on appeal by failing "to assert noncompliance with section 1203.1b in the trial court." (Trujillo, supra, at p. 858.) In doing so, the court rejected the argument that lack of a knowing and intelligent waiver under section 1203.1b constituted "clear and correctable legal error cognizable on appeal despite the lack of a contemporaneous objection." (Trujillo, supra, at p. 858.) The court instead concluded that the statute's procedural safeguards did not alter the defendant's burden "to assert noncompliance with section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal . . . ." (Trujillo, supra, at p. 858.) The court analogized to other discretionary sentencing choices made by trial courts in which "the existence, per se, of procedural safeguards in the sentencing process, such as the right to counsel and to present evidence and argument, did not prevent us from holding the forfeiture rule should apply . . . ." (Trujillo, supra, at p. 858.)
As the Supreme Court explained, "Section 1203.1b provides in relevant part that when a defendant is convicted and granted probation or a conditional sentence, and has been the subject of any preplea or presentence investigation and report, the probation officer—taking into account any amount the defendant is ordered to pay in fines, assessments and restitution—must make a determination of the defendant's ability to pay all or a portion of the reasonable cost of probation supervision and the preparation of the presentence report. (§ 1203.1b, subd. (a).) The statute directs the trial court to order the defendant to appear before the probation officer for a determination of the amount and manner of payments based on the defendant's ability to pay. (Ibid.)" (Trujillo, supra, 60 Cal.4th at p. 855.) The statute includes detailed provisions for the defendant's right to a hearing on the determination of his or her ability to pay and the payment amount and requires that the defendant " 'waive the right to a determination by the court of his or her ability to pay . . . by a knowing and intelligent waiver.' " (Ibid.)
In Aguilar, the court similarly held that the defendant's failure to challenge probation-related costs under section 1203.1b precluded him from challenging those fees on appeal. (Aguilar, supra, 60 Cal.4th at pp. 864, 866-868.) And in the predecessor case of People v. McCullough (2013) 56 Cal.4th 589, 591 (McCullough), the court held that the defendant forfeited an insufficiency of the evidence challenge to his ability to pay a jail booking fee by failing to object in the trial court. A "[d]efendant may not 'transform . . . a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.] By 'failing to object on the basis of his [ability] to pay,' defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' " (Id. at p. 597.) The court thus concluded that a "a defendant who does nothing to put at issue the propriety of imposition of a booking fee forfeits the right to challenge the sufficiency of the evidence to support imposition of the booking fee on appeal . . . ." (Id. at p. 598.)
In view of this binding authority, we conclude that Placido has forfeited his challenge to imposition of the probation supervision and sex offender management program fees based on insufficient evidence and the lack of an ability-to-pay finding. We turn to his remaining claim of error due to the court's failure to determine the amount of the sex offender management program participation fees at the time of sentencing.
Placido contends that because the trial court ordered him to pay the participation fees "as determined by the Court" but did not set the fees or specify an amount, the court failed to comply with the terms of the statute. Section 1203.067 requires any defendant ordered to participate in a sex offender management program to "be responsible for paying the expense of his or her participation in the program as determined by the court" and directs the court to "take into consideration the ability of the defendant to pay . . . ." (§ 1203.067, subd. (c).) A defendant may not be denied probation due to an inability to pay. (Ibid.)
Placido's primary argument is that the statutory language, properly construed, does not allow the sentencing court to authorize the program participation fees without determining the amount, such as under the theory that it will be calculated at a later time or by a probation officer. He maintains that the phrase "as determined by the court" in section 1203.067, subdivision (c) operates similarly to the statutory requirement for a court imposing sentence "to determine" the total number of days of presentence custody credits that a defendant should receive (§ 2900.5, subd. (d)). He further contrasts the language in section 1203.067 with that governing sex offender treatment for parolees, which holds parolees "responsible for paying the expense of" participation in sex offender management treatment programs, taking into consideration ability to pay (§ 3008, subd. (e)), but unlike section 1203.067 contains no reference to a determination by the court. Placido argues that the express reference to the court determining the expense of a probationer's participation in sex offender management programs under section 1203.067 is significant, given its omission in section 3008.
We are not persuaded that the phrase "as determined by the court" requires the expense of the defendant's participation in a sex offender management program to be determined simultaneous to the order to participate. But even accepting Placido's interpretation as correct for purposes of our review does not avert application of the forfeiture rule, because we are unable to discern any factual or legal basis that would warrant departure from the rule as applied under the analogous circumstances addressed in Trujillo, Aguilar, and McCullough.
Unlike the calculation of presentence custody credits, which by statute must occur at the time of sentencing and be specified in the abstract of judgment (§ 2900.5, subd. (d)), certain aspects of a defendant's participation in a sex offender management program may not be fully ascertainable at the time of sentencing. Indeed, in this case the trial court ordered Placido to "enter, participate in and complete an approved sex offender management program . . . for a period of not less than one year and up to the entire term of probation, as determined by the certified sex offender management professional in consultation with the probation officer and as approved by the Court." The statutory framework specifies certain terms ordered by the court, but the program length (§ 1203.067, subd. (b)(2)) and the resulting cost (id., subd. (c)) of any given defendant's participation in an appropriate management program logically depends in part on further input. (See Garcia, supra, 2 Cal.5th at p. 801 [describing California's "Containment Model" to manage sex offenders, including "sex offender-specific assessment and treatment"].) The requirement that the court "approve" the length of the program period as determined by the containment team and "determine" the defendant's responsibility for paying, taking into consideration the ability to pay (§ 1203.067, subds. (b)(2), (c)), supports the notion that the court's oversight may continue beyond the sentencing hearing and grant of probation, although the record in this case does not reveal if any further court oversight occurred.
These cases reiterate the basic precept that "[w]ith certain exceptions, a defendant generally must preserve claims of trial error by contemporaneous objection as a prerequisite to raising them on appeal." (Trujillo, supra, 60 Cal.4th at p. 856, fn. omitted.) While "neither forfeiture nor application of the forfeiture rule is automatic" (McCullough, supra, 56 Cal.4th at p. 593), the application of the forfeiture bar in Trujillo and Aguilar—particularly given section 1203.1b's detailed provisions to prevent imposition of a fee that the defendant is unable to pay—suggests that the countervailing considerations to finding forfeiture would need to be potent. (See McCullough, supra, at p. 593 [citing "[c]ompeting concerns" that may cause an appellate court to conclude that an objection has not been forfeited, e.g., forfeiture would be contrary to legislative intent, or the challenge presents an important legal issue]; Trujillo, supra, at p. 859 [distinguishing application of the forfeiture rule to fees imposed at sentencing from "settled exceptions to the forfeiture doctrine," like the advisement of federal constitutional rights before a defendant takes a guilty plea].)
Placido suggests that the defense might not have objected to imposition of the sex offender management program participation fee based on an assumption—correct or not—that the fee was relatively minor or not particularly onerous. He urges that application of the forfeiture doctrine is less reasonable when a defendant lacks the relevant facts on which to make an informed objection in the trial court. But it is precisely the factual nature of the issue that renders a timely objection critical. Just as " 'factual issues come into play in determining whether a defendant has the ability to pay' " a mandatory drug program fee (McCullough, supra, 56 Cal.4th at p. 597), factual issues must define the extent and expense of a defendant's participation in the sex offender management program. A defendant "who does nothing to put at issue the propriety of imposition" of the program fee based on the trial court's failure to specify the amount "forfeits the right to challenge" the propriety of the imposition of that fee on appeal. (Id. at p. 598.)
We conclude that to the extent the trial court's order to "pay the certified sex offender management program participation fees as determined by the Court, this pursuant to section 1203.067(c) of the Penal Code" omitted a factual statement of the amount imposed, Placido waived the claim of error by failing to object and, accordingly, has forfeited the challenge on appeal.
B. CORRECTIONS TO THE MINUTE ORDER AT SENTENCING
Placido identifies two claimed errors in the minute order from sentencing that he maintains require correction.
The first pertains to the length of his probation term. He contends that the minute order incorrectly recorded a probation term of three years, though the transcript of oral proceedings suggests the court imposed a term of two years. At sentencing, the trial court stated: "[I]t is the judgment and sentence of this court that the defendant be committed to the California Department of Corrections and Rehabilitations for a term of two years. The execution of that sentence is suspended, and he's admitted to probation for three years—the two year term." Although Placido initially argued that the minute order should be corrected to reflect the oral pronouncement, or the matter remanded to the trial court for clarification, he has since indicated in supplemental briefing that the issue is moot since he is no longer on probation.
The second claimed error concerns the suspended execution of sentence. Placido points out—and the People agree—that the minute order incorrectly indicates that "imposition of sentence" was suspended, when in fact the trial court imposed sentence and suspended its execution.
We accept the representation that Placido is no longer on probation, and accordingly, any clarification of the length of the probation term is moot. "[A]s a general matter, an issue is moot if 'any ruling by [the] court can have no practical impact or provide the parties effectual relief.' " (People v. J.S. (2014) 229 Cal.App.4th 163, 170.)
It is unclear if the same is true for the incorrect notation that "imposition of sentence" was suspended. Markedly different consequences can arise from a suspended imposition of sentence, as opposed to suspended execution of an imposed sentence, since only the latter constitutes a pronouncement of judgment. "When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation." (People v. Howard (1997) 16 Cal.4th 1081, 1087.) But "where a sentence has actually been imposed but its execution suspended, 'The revocation of the suspension of execution of the judgment brings the former judgment into full force and effect . . . .' " (Ibid.) Of course, this distinction is borne out when a defendant violates one or more terms of his or her probation, and accordingly is of consequence while the defendant remains on probation.
In our case, Placido is no longer under probation supervision and has not identified any practical effect that correction of the minute order would have at this stage. Even so, " 'a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts.' " (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Insofar as the notation on the minute order is clearly erroneous, and given the Attorney General's agreement that the minute order should be corrected to show the execution of sentence was suspended, we exercise our authority to order its correction.
Though not at issue here, this court is aware of other, perhaps unique or limited circumstances in which the difference between a suspended imposition of sentence and a suspended execution of an imposed sentence can have serious collateral consequences, such as for sentencing enhancement purposes in a future proceeding under federal immigration law. (See, e.g., U.S. v. Echavarria-Escobar (9th Cir. 2001) 270 F.3d 1265.) --------
III. DISPOSITION
The trial court is directed to amend the minute order to reflect that the execution of sentence was suspended. The probation order and judgment are affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.