Opinion
F061407
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. DURK ALLEN RUSSELL, Defendant and Appellant.
Randall H. Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR037647)
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Madera County. David D. Minier, Judge.
Randall H. Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Durk Allen Russell appeals from the judgment entered on a jury verdict convicting him of felony vandalism (Pen. Code, § 594, subd. (a), count 1) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1), count 2) and finding true a prior strike conviction allegation (§ 667, subd. (a)(1)). The court sentenced Russell to the upper term of six years on the vandalism conviction and 91 days on the resisting a peace officer conviction, with credit for time served.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Russell challenges the order to pay a $330 presentence report fee. He contends the order constituted an unauthorized sentence because there was no express ability to pay finding as required by section 1203.1b, and any implied finding of ability to pay is not supported by substantial evidence. We conclude that Russell forfeited this issue by failing to object in the trial court and will affirm.
FACTS
Because the facts of the offenses are not at issue, the following summary suffices. A witness saw Russell breaking the window of the house next door where the witness's sister, Cynthia, lived. Cynthia was Russell's former girlfriend and they had a child together. Cynthia had a restraining order against Russell. When Cynthia returned to the house that night, she found three windows were broken. Russell responded aggressively when police officers detained him.
At trial, Russell contested the amount of damage he had caused and argued his resistance was understandable because he did not want to be arrested.
The probation report indicated that Russell declined to be interviewed or to provide a statement for the probation officer. His history from a report filed in 2007 showed he was 34 years old, had obtained a GED while in prison, and had been employed at a meat packing plant. He had never married, but had three children who were in the custody of their mothers. He had been shot in 1997, but apparently made a full recovery and claimed to be in good health. He took no prescribed medications. He denied being addicted to any illegal drugs, but drank a 12-pack of beer on the weekends.
DISCUSSION
Presentence Report Fee
Russell contends the court imposed an unauthorized sentence when it ordered him to pay a $330 presentence report fee pursuant to section 1203.1b. The probation officer failed to make an ability to pay finding as required by the statute and the sentencing court did not rectify that error. Russell asks this court to strike the order because there is no evidence in the record of his ability to pay it. The People respond this issue was forfeited because Russell did not raise it in the trial court. We agree the issue was forfeited.
Section 1203.1b, subdivision (a) provides that the trial court may order a defendant to pay the cost of the presentence report. It directs the probation officer to determine the ability of the defendant to pay all or a portion of the reasonable cost of the report. It also directs the officer to inform the defendant that he is entitled to a hearing that includes the right to counsel, in which the court must determine his ability to pay and the payment amount. Subdivision (b) of section 1203.1b states, if the defendant does not waive his right to a hearing, the probation officer must refer the matter to the court to schedule a hearing to determine the amount of payment and the manner in which the payment shall be made.
Section 1203.1b is a recoupment statute that reflects the legislative policy in favor of shifting costs stemming from criminal acts back to the convicted defendant and replenishing the county treasury. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1073 (Valtakis).)
Here, the probation officer's report recommended that the court impose a $330 presentence report fee, but there is no indication that the probation officer or the court determined Russell's ability to pay. Nor is there any indication that Russell was notified of his right to a hearing on the issue or that he waived that right. However, neither Russell nor his trial counsel objected to the fee in the trial court.
Russell was uncooperative. He refused to be interviewed by the probation officer, and during sentencing, he repeatedly addressed the court with profanity until the court told him he would be removed.
Forfeiture
There is a split of authority as to whether an appellant can raise a sufficiency of the evidence challenge to an order to pay probation fees if he failed to object in the trial court. In People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco), the Sixth District held that a defendant who failed to object to the imposition of a probation supervision fee in the trial court did not forfeit a challenge to the fee on appeal because the challenge was to the sufficiency of the evidence to support a determination the defendant had the ability to pay the fee. In contrast, in Valtakis, supra, 105 Cal.App.4th at page 1072, the First District held that supreme court precedent compelled the conclusion that failure to object in the trial court to statutory error while imposing a probation fee under section 1203.1b waived the matter for purposes of appeal. A variation of this issue is currently before the California Supreme Court. (People v. McCullough, review granted June 29, 2011, S192513 [whether failure to object to imposition of a jail booking fee waived a sufficiency of the evidence of ability to pay challenge on appeal].) As applied to the facts of this case, we find the reasoning of Valtakis more persuasive than Pacheco.
This court has reached the same conclusion in a number of unpublished cases.
Under the forfeiture rules of People v. Welch (1993) 5 Cal.4th 228 and People v. Scott (1994) 9 Cal.4th 331 (Scott), only sentencing claims properly raised by the parties in the trial court are reviewable on appeal. The forfeiture rules are founded on considerations of fairness to the court and the opposing party and on the practical need for an orderly and efficient administration of the law. (People v. Saunders, supra, 5 Cal.4th at p. 590; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Under the forfeiture rules, a defendant is not permitted to challenge restitution fines imposed without findings or evidence of ability to pay (ibid.), nor can he challenge the trial court's exercise of sentencing discretion or failure to state statutorily required reasons absent an objection in the trial court (Scott, supra, 9 Cal.4th at p. 353). Appellate claims regarding sentences that, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner are deemed forfeited on appeal. (Ibid.) Under these rules, we find Russell's failure to object at sentencing to the noncompliance with the presentence report fee procedures forfeited the claim on appeal. (Valtakis, supra, 105 Cal.App.4th at pp. 1070-1071.)
Courts have used the terms "waiver" and "forfeiture" interchangeably. However, forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment of a known right. Thus, the failure to object to procedural irregularities in the imposition of the presentence report fee is a forfeiture, not a waiver. (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
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Russell contends the forfeiture rules do not apply because he is challenging the lack of evidence to support an implied finding of his ability to pay the fee, citing the rule that a claim of insufficiency of the evidence to support a judgment is cognizable on appeal even absent such a claim in the trial court. He relies on Pacheco, supra, 187 Cal.App.4th at page 1398 and People v. Butler (2003) 31 Cal.4th 1119, 1126 (Butler). We find Butler distinguishable and disagree with Pacheco's broad conclusion.
Butler involved an order to submit to AIDS testing that was not supported by a finding of probable cause. (Butler, supra, 31 Cal.4th at p. 1125.) The statute at issue, section 1202.1, subdivision (e)(6)(A), required that a defendant convicted of enumerated sex crimes submit to AIDS testing when the trial court found probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from the defendant to the victim. The order had not been objected to below, but its validity was statutorily predicated on the existence of probable cause. Consistent with the narrow exception to the general forfeiture rule, the court reasoned the challenge was appropriately resolved on appeal because the existence of probable cause was a legal question that an appellate court could determine simply from examining the appellate record. (Butler, at pp. 1126-1127.) The court stressed the limits of its holding: "Our conclusion in this case is controlled not only by the specific terms of section 1202.1 but also by the general mandate that involuntary HIV testing is strictly limited by statute.... [N]othing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal ...." (Id. at p. 1128, fn. 5; see also Id. at p. 1130 (conc. opn. of Baxter, J. ["[I]t remains the case that other sentencing 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"].)
Russell contends Butler stands for the proposition that "when a statute requires a finding of fact to support an order, a defendant may appeal the order, even absent an objection in the lower court, if no substantial evidence supports the finding of fact." We disagree. Such a broad holding is contrary to the language in Butler regarding the continued viability of the forfeiture rule to sentencing determinations on appeal. Further, a challenge to the sufficiency of evidence to support the imposition of a fee to which the defendant did not object is not the same as a challenge to the sufficiency of the evidence to support a conviction, to which defendant necessarily objected by contesting the issue at trial. (People v. Gibson, supra, 27 Cal.App.4th at pp. 1468-1469.) Under Butler, Russell's claim of sentencing error falls within that group of "other sentencing determinations" that is not reviewable absent an objection in the trial court.
Russell also relies on Pacheco, supra, 187 Cal.App.4th 1392 where the court struck a monthly probation fee and other fines and fees on the basis of insufficient evidence of ability to pay, despite no objection at trial. The Pacheco court based its holding on two of its earlier opinions where it held that claims based on the insufficiency of the evidence to support an attorney fees reimbursement order do not require an objection in the trial court to be preserved on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186 (Viray); People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez).)
In Viray, the court found an exception to the forfeiture rule for a challenge to an attorney fee award under section 987.8, subdivision (b) based on the defendant's right to effective assistance of counsel. "We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees." (Viray, supra, 134 Cal.App.4th at p. 1215.) When the defendant's attorney asks the court for an order taking money from the defendant and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest that should not serve as a basis to vicariously attribute counsel's omissions to the defendant. (Ibid.)
In Lopez, the defendant was sentenced to prison. The attorney fees provision at issue, section 987.8, subdivision (g)(2)(B), provided that a defendant sentenced to prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his defense, unless the court finds unusual circumstances. The Lopez court construed this provision to require an express finding of unusual circumstances before ordering a prisoner to reimburse his attorney. (Lopez, supra, 129 Cal.App.4th at p. 1537.) The court noted that, because it was reversing Lopez's convictions, the trial court would have an opportunity to reconsider the fee. (Ibid.)
Viray and Lopez are too legally and factually narrow to support the broad exception to the general forfeiture rule for substantial evidence challenges, which Pacheco adopted. Virtually any challenge to a fee imposed without an objection at a sentencing hearing can be framed as a sufficiency of the evidence issue on appeal, which would render cognizable issues addressed most effectively and economically in the trial court. Moreover, Pacheco did not discuss or distinguish the California Supreme Court authority on the forfeiture rule for sentencing errors, which undermines its persuasiveness. (Pacheco, supra, 187 Cal.App.4th at p. 1397.)
Russell submits that Valtakis is distinguishable from his situation because, in addition to holding that the defendant's failure to object to the fee in the trial court forfeited his claim on appeal, the court noted, if it could reach the issues, it would find no prejudice because the record did not suggest that Valtakis was unable to pay the $250 fee imposed. (Valtakis, supra, 105 Cal.App.4th at p. 1076.) The court's alternative language is immaterial to its holding and does not compel a different result for Russell. Under the forfeiture rules, we do not review the merits of the forfeited claim. Moreover, the record in this case has little information regarding Russell's ability to pay because as Russell concedes, he refused to be interviewed by the probation officer.
It would be highly counterproductive to the purposes of the recoupment statutes to provide costly appellate review of the presentence report fee where Russell refused to speak with the probation officer and made no objection when the court imposed the $330 fee. Moreover, it is unnecessary because the Legislature has provided mechanisms in section 1203.1b for adjusting fees and reevaluating an ability to pay without an appeal anytime during the pendency of the judgment rendered. (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
Finally, Russell asserts that because the procedures for imposing presentence report fees resemble the "elaborate" procedures required to impose attorney fees, the Legislature must have intended that the forfeiture rule not apply when the order lacks sufficient evidence of the defendant's ability to pay. Again, we disagree. Nothing in the language of section 1203.1b indicates any legislative intent regarding the appellate forfeiture rule.
For all of the above reasons, Russell forfeited his right to challenge the imposition of the presentence report fee by his failure to object to it in the trial court.
DISPOSITION
The judgment is affirmed.