P. v. Jenvey

Filed 5/8/07 P. v. Jenvey CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Jennifer Jenvey admitted cashing three forged checks that had been stolen from mailboxes near her home, but told police that she was trying to earn a little extra money by cleaning the residence of James Luke and Suzanne English, and that she was given the checks by Luke to purchase cleaning supplies. Prior to her arrest, defendant returned to the liquor store and gave the owner back $450 for one of the cashed checks, plus $20 to cover the bank service fee.

Defendant was arrested and charged with three counts of felony forgery. In exchange for a promise of no state prison at the outset and the dismissal of two counts with a Harveywaiver (People v. Harvey (1979) 25 Cal.3d 754), she entered a negotiated plea of no contest to one count of forgery. The entry of plea form that she signed included a Harvey waiver.

At sentencing, the parties submitted the matter on the probation report. The trial court suspended the imposition of sentence and placed defendant on formal probation for three years. Consistent with the recommended terms and conditions contained in the probation report, defendant was ordered to serve 90 days in jail (minus applicable credits) and to pay specified fees and fines, including a victim restitution fine in the amount of $920 ($620 to be paid to Denise Preciado and $300 to be paid to First USA Management Services).

On appeal, defendant contends the $920 victim restitution fine was unauthorized and not supported by substantial evidence. We shall affirm the judgment.

DISCUSSION

Defendant contends that the $920 victim restitution fine was unauthorized because she was neither charged with, nor convicted of, any crime causing that loss. She also claims that the only evidence given in support of the $920 fine was an unsubstantiated statement of loss in the probation report; thus, the fine is not supported by substantial evidence.

The People retort that defendant forfeited her claim by failing either to object at the time the sentence was imposed or request a subsequent hearing on the amount of restitution.

Trial courts have discretion to impose all reasonable conditions of probation, which will be upheld on appeal unless the condition (1) has no relationship to the crime of which the defendant is convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) Any challenge to a condition as outside the power of the court is forfeited on appeal unless first brought to the trial court at the time of sentencing. (People v. Welch (1993) 5Cal.4th 228, 237.)

We agree with the People that the claim of error has been forfeited. Defendant had the benefit of counsel at sentencing. Nothing in the record suggests that she was not provided with the probation report prior to the imposition of sentence. When given the opportunity to address the trial court prior thereto, defendant submitted the matter and remained silent upon hearing the courts oral pronouncement of the sentence, including its specific reference to the financial conditions of probation.

The only exception to the forfeiture rule is if the sentence is unauthorized and could not be imposed under the law. (People v. Smith (2001) 24 Cal.4th 849 (hereafter Smith).) Because such sentences could not lawfully be imposed under any circumstance in the particular case [citation], they are reviewable regardless of whether an objection or argument was raised in the trial and/or reviewing court. [Citation.] (Id. at p. 852.) Smith deemed appellate intervention appropriate in these cases because the errors presented pure questions of law [citation], and were clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable. (Ibid.)

This case does not fall within the narrow exception in Smith. Notwithstanding her characterization of the fine as unauthorized, the basis of defendants claim is a lack of evidence to support the validity of the $920 fine (i.e., a rational or factual basis for the amount) or to connect that loss to defendant. Determination of those claims requires us to review the trial courts factual findings, an exercise we will not undertake in the absence of an appropriate objection by defendant preserving her right to compel us to do so at this juncture.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

HULL, J.

CANTIL-SAKAUYE , J.

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