P. v. Morrow
Filed 6/11/13 P. v. Morrow CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CYNTHIA LEIGH MORROW,
Defendant and Appellant.
D061945
(Super. Ct.
No. SCE314763)
APPEAL from
a judgment of the Superior Court
of
Allan J. Preckel, Judge. Affirmed as
modified.
Russell S.
Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie
Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Cynthia Leigh Morrow appeals a judgment following her
conviction of inflicting corporal injury
on a cohabitant (Pen. Code, § 273.5, subd. (a))
and assault with a deadly weapon (§ 245, subd. (a)(1)). On appeal, she contends the trial court erred
by imposing certain fines and fees. She
also contends the probation order does not correctly reflect the number of days
of presentence custody credits
awarded by the court.
FACTUAL
AND PROCEDURAL BACKGROUND
Because
Morrow's appellate contentions are not based on the specific facts of her
offenses, we set forth only a brief summary of those facts. On September
22, 2011, Morrow was living with John Dupuis and had a romantic
relationship with him. At about 6:00 or 6:30
a.m., Morrow stabbed Dupuis in the
An
information charged Morrow with inflicting corporal injury on a cohabitant
(§ 273.5, subd. (a)) and assault with a deadly weapon (§ 245, subd.
(a)(1)). It also alleged she personally
used a deadly weapon in committing those offenses (§ 1192.7, subd.
(c)(23)). After waiving her right to a
jury trial, the court found her guilty of the charged offenses and found true
the section 1192.7, subdivision (c)(23) allegations. The court granted her formal probation for
five years on the condition she serve 365 days in local custody. It also ordered her to pay certain fines and
fees. Morrow timely filed a notice of
appeal.
DISCUSSION
I
Morrow
contends the trial court erred by imposing a total penalty assessment of $560
instead of $340.
A
The
probation department recommended the trial court order Morrow to pay a total
fine of $800, consisting of a $200 base fine, a $40 surcharge, and a $560
penalty assessment. At the
the recommendation and ordered her to pay the $800 fine.
B
The People
assert, and we agree, Morrow has forfeited or waived her contention by not
objecting to the fine at the time of sentencing. In People
v. McCullough (2013) 56 Cal.4th 589 (McCullough),
the California Supreme Court noted it had held on numerous occasions that a
defendant may forfeit a constitutional or other right by not timely asserting
it. (Id.
at p. 593.) Errors that can be easily
corrected or avoided should be timely brought to the trial court's
attention. (Ibid.) In
question of whether a defendant forfeited a challenge to a Government Code
section 29550.2 booking fee by not objecting at the time of sentencing on the
ground there was insufficient evidence to support a finding he had the ability
to pay that fee. (Id. at pp. 591, 596-597.)
McCullough concluded the
defendant's ability to pay the booking fee was a question of fact and not
law. (Id. at p. 597.) The court
held: "[B]ecause a court's imposition of a booking fee is confined to
factual determinations, a defendant who fails to challenge the sufficiency of
the evidence at the proceeding when the fee is imposed may not raise the
challenge on appeal." (
McCullough disapproved
1392 to the extent it concluded otherwise.
(McCullough,
judgment. (Id. at p. 600.)
Because
Morrow did not challenge at sentencing the $800 fine or, specifically, the $560
penalty assessment portion, we conclude she forfeited or waived any challenge
to it. (McCullough, supra, 56
Cal.4th at pp. 593, 597.) Although the
instant issue involves a penalty assessment rather than a booking fee, fines
and penalty assessments are sufficiently similar to booking fees to apply
we conclude a defendant must object at sentencing to a fine, or any penalty
assessment portion. If the defendant
fails to object, he or she forfeits or waives any objection to the fine or
penalty assessment.
C
In any
event, assuming arguendo Morrow did not forfeit or waive her challenge to the
penalty assessment, we nevertheless would conclude she has not carried her
burden on appeal to show the court erred by imposing a $560 penalty assessment
rather than a $340 assessment. As the
People assert, People v. Castellanos
(2009) 175 Cal.App.4th 1524 sets forth the seven separate statutory components
comprising a penalty assessment that may be imposed in addition to a fine. (Id.
at pp. 1528-1530.) At that time, those
seven statutory assessment penalties resulted in a total of $26 in additional
assessments for each $10 amount of fine.
(Id. at p. 1530.) Because one statutory component (i.e., Gov.
Code, § 76104.7, subd. (a)) was amended in 2010 to increase by $2 the
assessments added to each $10 fine, the total amount of the seven additional
statutory assessments at the time of Morrow's 2012 sentencing was, as the People
assert, $28 per $10 of fines. Because
the court imposed a $200 base fine, it properly imposed a penalty assessment of
$560 (i.e., $28 times 20). Therefore,
the court properly imposed a total fine of $800, including a $560 penalty
assessment.
II
Morrow
contends the evidence is insufficient to support a finding she has the ability
to pay the $154 booking fee imposed by the court. She argues Government Code section 29550.1
implicitly requires a finding she had the ability to pay that fee.
We conclude
Morrow forfeited or waived any challenge to the booking fee by not objecting to
it at the time of sentencing. As
discussed above, McCullough held a
defendant must object to a booking fee at the time of sentencing and, if he or
she does not, then any challenge to it is forfeited or waived. (McCullough,
supra, 56 Cal.4th at pp. 593,
597, 599.) Although McCullough involved a booking fee under Government Code section
29550.2 rather than Government Code section 29550.1, as involved in this case,
we believe McCullough's holding and
reasoning apply equally to the booking fee here. Therefore, we conclude Morrow has forfeited
or waived any challenge to the booking fee by not objecting to it at the time
of sentencing.
III
Morrow contends
the evidence is insufficient to support a finding she has the ability to pay
the $400 domestic violence fee imposed
by the court pursuant to section 1203.097.
We conclude Morrow forfeited or waived any challenge to that fee by not
objecting to it at the time of sentencing.
Although McCullough involved a
booking fee under Government Code section 29550.2 rather than a domestic
violence fee under section 1203.097, McCullough's
holding and reasoning apply equally to the domestic violence fee in this
case. Therefore, we conclude Morrow has
forfeited or waived any challenge to the domestic violence fee by not objecting
to it at the time of sentencing.
IV
Morrow
contends the evidence is insufficient to support a finding she has the ability
to pay $1,127 in probation costs pursuant to section 1203.1b. The People apparently concede there has not
been any determination of Morrow's ability to pay probation costs and therefore
suggest the matter should be remanded for that determination.
A
Section
1203.1b provides in pertinent part:
"(a) In any
case in which a defendant is convicted of an offense and is the subject of any
preplea or presentence investigation and report, whether or not probation supervision
is ordered by the court, and in any case in which a defendant is granted
probation or given a conditional sentence, the probation officer . . . , taking
into account any amount that the defendant is ordered to pay in fines,
assessments, and restitution, shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any probation
supervision or a conditional sentence, [and] . . . of conducting any
presentence investigation and preparing any presentence report made pursuant to
Section 1203 . . . . The court shall
order the defendant to appear before the probation officer . . . to make an
inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer . . . shall determine
the amount of payment and the manner in which the payments shall be made to the
county, based upon the defendant's ability to pay. 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.
"(b) When
the defendant fails to waive the right provided in subdivision (a) to a
determination by the court of his or her ability to pay and the payment amount,
the probation officer shall refer the matter to the court for the scheduling of
a hearing to determine the amount of payment and the manner in which the
payments shall be made. The court shall
order the defendant to pay the reasonable costs if it determines that the
defendant has the ability to pay those costs based on the report of the
probation officer . . . ."
B
The trial
court's probation order did not order Morrow to pay probation costs of
$1,127. Rather, it ordered her to
cooperate with the probation officer in completing a financial evaluation as
required pursuant to section 1203.1b.
Furthermore, the order contemplated further proceedings before any
judgment may be entered ordering her to pay those costs.
sentencing ordered her to pay $1,127 in probation costs. However, because the trial court in
sentencing her did not order her to pay probation costs but merely ordered her
to cooperate with the probation officer in completing a financial evaluation
pursuant to section 1203.1b, we reject Morrow's assertion the evidence is insufficient
to support the court's purported order that she pay $1,127 in probation
costs. The court did not make that order
and therefore did not err. In the event
the probation officer or court makes a determination of her ability to pay in
the future and orders her to pay probation costs, Morrow presumably may at that
time challenge the finding and order.
V
Morrow
contends there is insufficient evidence to support a finding she has the
ability to pay her attorney fees.
Although the written probation order includes a provision finding the
value of the public defender's services in representing Morrow was $570, the
trial court did not, as the People note, issue any order requiring her to pay
those attorney fees. Because the court
did not order Morrow to pay any attorney fees, we need not address her
assertion the evidence is insufficient to support a finding she has the ability
to pay those purported attorney fees.
Therefore, Morrow has not carried her burden on appeal to show the court
erred. We also reject Morrow's
conclusory contention that because the evidence is insufficient to support
findings she has the ability to pay the penalty assessment, booking fee,
domestic violence fee, probation costs, and attorney fees, she was denied her constitutional
rights to due process of law.
VI
Morrow
contends, and the People concede, the trial court's probation order must be
modified to reflect the correct number of days of custody credits it awarded
her at the time of sentencing. At
sentencing, the court awarded Morrow credit for 201 actual days in presentence
custody, plus 100 days of section 4019 credits, for a total of 301 days of
custody credits. However, the written
probation order issued by the court erroneously reflects only 180 actual days
of credits, plus 90 days of section 4019 credits, for a total of 270 days of
custody credits. Accordingly, that order
incorrectly sets forth the amount of Morrow's presentence custody credits. We exercise our discretion to modify the
order to reflect the correct number of days of presentence custody credits
(i.e., 301 total custody credits). (
181, 185.)
DISPOSITION
The
judgment is modified to award Morrow presentence custody credits of 201 days of
actual custody and 100 days of section 4019 credits, for a total of 301 days of
presentence custody credits. As so
modified, we affirm the judgment.
McDONALD,
J.
WE CONCUR:
NARES,
Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise specified.
name="_ftn2" title="">[2] The order stated: "You are ordered to cooperate with
the probation officer or their [sic] authorized representative as directed, in
the completion of the financial evaluation required under [section]
1203.1b. If it is determined that you
have the present ability to repay the county for all or any part of the costs
of the pre-sentence investigation and/or costs of probation supervision, the
county will request that a judgment be issued against you for these
amounts. If you do not agree with the
determination, you have a right to a hearing before the court for a decision on
your present ability. . . . These costs
are presently set at $1,127 for the pre-sentence investigation and up to $99
per month for probation supervision.
Payment of any costs so determined shall be to Revenue and
Recovery. Payment is not a condition of
probation but any judgment obtained may be enforced in the manner of any civil
judgment."
