P. v. Givens

Filed 4/18/06 P. v. Givens CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Scott Edward Givens pleaded guilty to driving under the influence of alcohol (DUI), on two separate occasions, and child endangerment. (Veh. Code, § 23152, subd. (a); Pen. Code, § 273a, subd. (a).) The court suspended imposition of sentence and granted defendant probation, conditioned upon serving 364 days in county jail. The court also imposed other terms and conditions, including payment of an alcohol abuse education and prevention penalty assessment of $50. (Veh. Code, § 23645.)

Defendant did not object to imposition of the $50 fee in the trial court, but now contends that he has no ability to pay the fee. Defendant recognizes that sentencing determinations are generally not reviewable on appeal absent a timely objection, but argues that the penalty assessment should nevertheless be struck because it is unsupported by the evidence. Alternatively, defendant argues that any waiver of the claim caused by defense counsel's failure to object at trial constitutes ineffective assistance of counsel and should be remedied by striking the assessment. We reject the contentions and affirm the judgment, including the $50 penalty assessment.

facts

Defendant drove under the influence on May 20 and June 23, 2005. On the second occasion, defendant was reportedly driving a van with his three young children in the rear of the vehicle without any safety restraints. Defendant was charged with multiple criminal offenses and, in exchange for dismissal of some of the charges, pleaded guilty to two counts of DUI and one count of child endangerment. (Veh. Code, § 23152, subd. (a); Pen. Code, § 273a, subd. (a).) Defendant also admitted that he had a blood alcohol level of .20 percent or more when driving the children in June 2005. (Veh. Code, § 23578.) Defendant was advised that he would be subject to fines and penalty assessments at sentencing, and he said he understood.

A probation officer recommended that defendant be granted probation under multiple terms and conditions, including the imposition of fines and assessments such as the $50 fee at issue on this appeal. The sentencing report noted that defendant and his family had been evicted from their home and, for the previous seven months, had been living out of their van and motel rooms. Defendant had not been regularly employed since losing his job as a â€