Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FVA701374 & FSB800431, Michael M. Dest, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Christian Andrew Singer appeals after he pleaded guilty to one count of first degree burglary and one count of second degree burglary. He contends that the matter must be remanded for a hearing on his ability to pay certain probation costs, and that certain conditions of his probation must be modified. The People concede that the probation conditions should be modified; we otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On July 30, 2007, four men burglarized a residence in Rialto. The burglars took a laptop computer, a digital camera and a bayonet. A neighbor’s video surveillance camera captured footage of the four men and their vehicle. An investigating officer created a “wanted” flier from the video and distributed the flier to police officers.
A couple of weeks later, in August 2007, police officers spotted the vehicle depicted in the “wanted” flier. Officers conducted a traffic stop. Three men were in the car. One had the same distinctive hairstyle as one of the burglars seen on the surveillance video. Another of the men was defendant. The vehicle was registered to defendant’s parents. Defendant consented to a search of the vehicle; officers found the stolen laptop computer, as well as a realistic-looking replica handgun.
Defendant was arrested. He waived his Miranda rights and agreed to talk to police. He identified the other three participants in the July burglary and told police he knew them because they had gone to school together. Defendant’s friends told him that they needed to pick up a laptop and some other items. The other three individuals went up to the house while defendant waited in the car. They came back two minutes later carrying the laptop and other items. They said they were ready, and defendant drove away. Defendant was charged with first degree residential burglary. (Pen. Code, § 459.)
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974].
All further statutory references will be to the Penal Code unless otherwise indicated.
A few months later, in January 2008, a citizen in San Bernardino called police to report a possible burglary in progress. The victim related that the doorbell rang and she looked through the peephole, but she did not recognize the man standing outside. The man wore a hooded sweatshirt and had his back facing the door. When he turned back toward the door, he began pounding with his fist. The victim, frightened, ran upstairs and called police. When police arrived, they found defendant on the enclosed back patio, attempting to gain entry through a sliding glass door. Defendant had removed a screen and the sliding door was partially open.
Defendant explained that his aunt lived at the residence, and he himself had stayed there several months earlier. He said he had come by to pick up some of his clothes that he had left there. When no one answered the front door, he checked for a hidden key that used to be kept by the lamp. Failing that, he went around to the back of the residence to see if he could gain entry or contact someone inside. Defendant’s aunt told police that she had not lived at that residence for a long time, that she resided in Redlands, and that defendant had visited her at her residence in Redlands about one week earlier. Defendant was out on bail for the July burglary at the time of the new offense. Defendant was charged with attempted first degree burglary.
Pursuant to a plea bargain, defendant agreed to plead guilty to the July offense, first degree burglary; the January offense was amended to charge one count of second degree burglary, and defendant also pleaded guilty to that charge.
Defendant was sentenced in April 2008. As to each case, defendant was placed on three years supervised probation, to be served concurrently.
Defendant now appeals, contesting matters concerning the sentence or occurring after the plea.
DISCUSSION
A. Defendant Forfeited the Right to Challenge the Order to Pay Probation Costs.
At sentencing, with respect to the first degree burglary case, the trial court ordered defendant to pay the cost of preparing the probation report (total of $505) and probation supervision fees of $15 per month. The court ordered defendant to pay $355 per month. Counsel requested a reduction to $50 per month, and the court ordered payments of $100 per month. Counsel did not further argue or object. The court ultimately ordered defendant to pay a total of $120 per month for probation costs: the reduced amount of $100 for the first case, and $20 for the second.
Defendant points out that section 1203.1b, subdivision (a), provides that, in any case where the convicted defendant is the subject of a presentence investigation and report, and the defendant is granted probation, the probation officer must make a determination of the defendant’s ability to pay all or a portion of the costs of probation supervision, and of preparing the presentence report. The probation officer’s determination should take account of other amounts the defendant is ordered to pay in fines and restitution. If the probation officer determines that the defendant has the ability to pay some of the probation costs, section 1203.1b, subdivision (a), further provides that the probation officer “shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.”
Here, the record does not affirmatively demonstrate that the probation officer complied with the duty to inform defendant of his right to a court determination of his ability to pay the probation costs. Defendant therefore contends that the matter must be remanded to permit compliance with this mandatory duty, and to either hold a hearing on his ability to pay, or to obtain an express waiver of such hearing.
Defendant acknowledges that in People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), the court held that a defendant’s failure to object at sentencing to noncompliance with section 1203.1b forfeits the claim on appeal. (Valtakis, at p.1068.) He contends, however, that Valtakis was wrongly decided.
It might seem incongruous that, notwithstanding the statute’s explicit provision that a knowing and intelligent waiver is required, it may nevertheless be forfeited by failure to raise the issue in the trial court. However, each of the arguments raised by defendant was considered and rejected in Valtakis. Indeed, the overarching policy of section 1203.1b is to “shift [the] costs arising from criminal acts back to convicted defendants and [to] replenish[] public coffers from the pockets of those who have directly benefited from county expenditures.” (People v. Bradus (2007) 149 Cal.App.4th 636, 643.) It would be utterly counterproductive to that legislative policy to permit convicted defendants to stand silently by, and to raise the issue for the first time on appeal, thus draining both appellate and trial court resources in the process. (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
Here, defendant had a full and fair opportunity to object on the ground of his alleged lack of ability to pay, and indeed his counsel argued for a reduction without requesting a hearing. Defendant has forfeited the claim on appeal.
B. Probation Conditions Nos. 16 and 17 Must Be Modified to Require Defendant’s Express Knowledge.
The conditions of defendant’s probation included prohibitions against his association with known felons or known drug users. Defendant contends that these probation conditions did not properly reflect that it must be known to defendant personally that a person is a convicted felon, or whom he himself knows uses or sells illegal drugs.
Thus, in People v. Garcia (1993) 19 Cal.App.4th 97, for example, the court remedied the problem by modifying the conditions of probation to provide that the defendant not “associate with persons he knows to be users or sellers of narcotics, felons or ex-felons.” (Id. at p.102, italics added.) The People concede that defendant’s probation conditions should be similarly modified here.
Accordingly, it is ordered that the conditions of defendant’s probation shall be modified as follows:
“16. 109A Not associate with persons known to defendant to be convicted felons or anyone actively engaged in criminal activity, or codefendant(s) and/or victim(s).
“17. 109B Not associate with persons known to defendant to be illegal users or sellers of controlled substances.” (Italics added.)
DISPOSITION
Probation conditions Nos. 16 and 17 are modified to reflect that defendant’s personal knowledge is required. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., McKINSTER J.