Filed 9/20/17 P. v. Arizpe CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. IVAN ARIZPE, Defendant and Appellant.

H041006 (Santa Clara County Super. Ct. No. F1449704)

Following a plea bargain in a case involving a registrable sex offense, defendant Ivan Arizpe was placed on probation for three years, subject to various conditions.

On appeal, Arizpe challenges several of his probation conditions, including those which: (1) require his consent to polygraph examinations; (2) require that he waive his psychotherapist-patient privilege and his privilege against self-incrimination; (3) limit his right to associate; and (4) preclude him from purchasing or possessing sexually-explicit material.[1] He also argues the trial court erred by imposing booking fees and probation supervision costs without determining he had the ability to pay such fees. In the alternative, if the court finds this argument is forfeited due to trial counsel’s failure to object, Arizpe contends his counsel rendered ineffective assistance.

We find that the appeal is moot with respect to Arizpe’s probation conditions. We further find that Arizpe forfeited any claim of error with respect to the order directing him to pay a booking fee and probation supervision costs. We also find that Arizpe’s ineffective assistance of counsel claim is without merit. Accordingly, we will affirm.

I. Factual and Procedural Background[2]

Arizpe was charged with one felony count of possession or control of child pornography (Pen. Code, § 311.11, subd. (a))[3] and one misdemeanor count of development and duplication of obscene matter (§ 311.3, subd. (a)). On March 6, 2014, he pleaded no contest to both charges pursuant to a plea agreement.

On May 5, 2014, the trial court sentenced Arizpe to prison for two years, suspended execution of that sentence and placed Arizpe on formal probation for three years, subject to various conditions. Arizpe was ordered to serve eight months in county jail and, pursuant to section 1203.067, subdivision (b)(2), was required to submit to polygraph examinations, waive his privilege against self-incrimination and waive his psychotherapist-patient privilege.

Arizpe was also ordered not to “date, socialize with, or form a romantic relationship with any person who has physical custody of a minor, unless approved by the probation officer.” In addition, the trial court imposed a condition directing that Arizpe “shall not purchase or possess any pornographic or sexually explicit material as defined by his probation officer[] [and] [h]e shall not frequent, be employed by, or engage in any business where pornographic material are [sic] openly exhibited.”

Finally, along with various other fines and fees, Arizpe was ordered to pay a criminal justice administration fee of $259.50[4] and a probation supervision fee not to exceed $110 per month. The trial court expressly found that Arizpe was “indigent for the purpose of public defender fees.”

Arizpe timely appealed.

II. Discussion

Following the California Supreme Court’s decision in People v. Garcia (2017) 2 Cal.5th 792, we requested supplemental briefing from the parties regarding whether the issues raised in this appeal were moot. In his supplemental letter brief, Arizpe concedes that his arguments regarding specified probation conditions are moot because his probation term has expired, but he requests that the court address his challenge to the booking fee and probation supervision fee. The People’s response urges this court to dismiss the entire appeal as moot, based on the termination of Arizpe’s probation.

We agree that, having successfully completed probation, the challenges to the various conditions of probation are moot. The issues relating to the trial court’s order imposing a booking fee and probation supervision fees, however, are not.

A. Booking and probation supervision fees

Arizpe argues that the trial court erred in imposing a $259.50 booking fee and probation supervision costs not to exceed $110 per month because it also expressly found that he was indigent “for the purpose of public defender fees.” In his view, the trial court’s finding of indigence as to public defender fees makes the order to pay booking fees and probation supervision fees unauthorized. We disagree and find that Arizpe has forfeited his claims of error by failing to object to the imposition of these fees at sentencing. (People v. McCullough (2013) 56 Cal.4th 589 [booking fees]; People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo) [probation supervision costs].)

“In the context of section 1203.1b, a defendant’s making or failing to make a knowing and intelligent waiver occurs before the probation officer, off the record and outside the sentencing court’s presence.” (Trujillo, supra, 60 Cal.4th at p. 858.) “[T]he legislative scheme contemplates that the probation officer’s advisements and defendant’s waiver of the right to a hearing will take place off the record, in the probation department. (§ 1203.1b, subd. (a).) Thus, unlike cases in which either statute or case law requires an affirmative showing on the record of the knowing and intelligent nature of a waiver, in this context defendant’s counsel is in the best position to determine whether defendant has knowingly and intelligently waived the right to a court hearing. It follows that an appellate court is not well positioned to review this question in the first instance.” (Id. at p. 860.)

In this case, Arizpe and his counsel received and reviewed the waived referral report prepared by the probation department. While counsel filed written objections to certain of the probation conditions recommended therein, no objections were raised—either prior to or at the sentencing hearing—to any of the fines and fees set forth in that report including the booking fee and probation supervision costs. By stating that Arizpe was indigent “for the purpose of public defender fees” the trial court was clearly limiting its finding to that one potential fee obligation but no others. Arizpe has cited no authority for the proposition that the trial court is not empowered to find that a defendant has the wherewithal to pay some specified fees and costs, but not others, as it did here, and our research has disclosed no such authority. Accordingly, by failing to object to these fees below, Arizpe has forfeited his objections.

B. Ineffective assistance of counsel

Anticipating that his claims of error would be forfeited due to the failure to object, Arizpe argues that he is nonetheless entitled to relief because his trial counsel was constitutionally ineffective. We disagree.

Ineffective assistance of counsel requires a showing that counsel’s performance fell below an objective standard of reasonableness and the defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation’ [citation], the case is affirmed.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.)

Prejudice requires a showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215.)

Here we find no deficient performance. Counsel may have made a tactical decision to not challenge the booking fee and probation supervision costs, especially where the trial court declined to impose attorney fees as well. Given that Arizpe waived referral to probation, there is no information in the record regarding his record of employment or his finances. Trial counsel, based on his or her greater knowledge of Arizpe’s financial situation, may have known that any objection to the booking and probation supervision fees would not only be futile, but could perhaps jeopardize the trial court’s decision not to impose public defender fees on Arizpe. It is therefore conceivable that trial counsel’s objection would have made matters worse for Arizpe. The point is, however, that based on this record, we have no way of knowing.

Arizpe also cannot show prejudice. Without information relating to Arizpe’s work and earnings history, we cannot say that the trial court would have reached a more favorable conclusion had counsel objected.

III. Disposition

The judgment is affirmed.

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