P. v. Chadd
Filed 11/15/13
P. v. Chadd CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LESLIE ZELMAN CHADD,
Defendant and
Appellant.
F065687
(Super.
Ct. No. F12300010)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Jon N. Kapetan, Judge.
John Doyle,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie
A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Defendant Leslie Zelman Chadd pled no contest to assault
by means likely to cause great bodily
§ 245, former subd. (a)(1), now subd. (a)(4))
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to four years
in prison and imposed various fines and fees, including a $296 fee for a
presentence probation report pursuant to section 1203.1b. On appeal, defendant contends (1) the
trial court failed to inform him of his right to contest imposition of the fee
and (2) there was insufficient evidence he could afford to pay the
fee. We agree with the People that
defendant has forfeited the claims by failing to object in the trial court.
DISCUSSION
The $296 probation report fee was
based on section 1203.1b, which authorizes the recoupment of certain costs
incurred for the preparation of presentence investigations and reports on the
defendant’s amenability to probation. (See People v.
Valtakis (2003) 105
Cal.App.4th 1066, 1070 (Valtakis).) Section 1203.1b, subdivision (b)
provides in pertinent part: “
if it determines
that the defendant
has the ability
or his or
We conclude defendant forfeited the
issue by not objecting at sentencing. (
[§ 1203.1b probation fee].) In People
v. McCullough (2013) 56
Cal.4th 589 (McCullough), our Supreme
Court recently held that the defendant’s failure to object to the imposition of
a jail booking fee (Gov. Code, § 29550.2) forfeited the claim that he
lacked the ability to pay the fee. The
court concluded that the defendant’s financial ability to pay the fee was a
question of fact, not law. (McCullough,
supra, at p. 597.) “Defendant may not ‘transform … a factual
claim into a legal one by asserting the record’s deficiency as a legal error.’ [Citation.] By ‘failing to object on the basis of his
[ability] to pay,’ defendant forfeits both his claim of factual error and the
dependent claim challenging ‘the adequacy of the record on that point.’ [Citations.]
… [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.†(Ibid.)
to presentence probation report fees. Before
sentencing, defendant was in possession of the probation officer’s report,
which recommended that the court impose a $296 probation report fee pursuant to
section 1203.1b. At the sentencing
hearing, defense counsel stated
defendant had received the report and had no additions, comments, or
corrections to the report. When the
court sentenced defendant and imposed the fee, defendant did not object to the
fee and thus challenges to the fee are forfeited on appeal.
Defendant maintains that the trial
court did not follow the procedures required by section 1203.1b and, as a
result, he did not make a knowing and intelligent waiver of his right to a
determination by the court of his ability to pay.
Valtakis, supra, 105 Cal.App.4th 1066, however, held a defendant’s failure
to object at sentencing to noncompliance with the probation fee procedures of
section 1203.1b waives any claim of error on appeal. (105 Cal.App.4th at p. 1068.)†(People
v. Aguilar (2013) 219 Cal.App.4th 1094, 1098 [2013 Cal.App. Lexis 753, 7];
see also People v. Robinson (2002)
104 Cal.App.4th 902, 905-906 [procedural irregularities waived by not objecting
to imposition of probation report fee]; People
v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) Valtakis
explained: “To allow a defendant and his
counsel to stand silently by as the court imposes a $250 fee, as here, and then
contest this for the first time on an appeal that drains the public fisc of
many thousands of dollars in court and appointed counsel costs, would be
hideously counterproductive. It would
also be completely unnecessary, for the Legislature has provided mechanisms in
section 1203.1b for adjusting fees and reevaluating ability to pay without
an appeal anytime during the probationary period (§ 1203.1b, subd. (c))
or the pendency of any judgment [citation].†(Valtakis, supra, at p 1076.)
Defendant acknowledges
is uncertain while review was pending in McCullough. Since defendant’s statement, however,
defendant.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Kane, Acting P.J., Poochigian, J. and Franson, J.
name="_ftn2" title="">[1] All statutory references are to the Penal Code unless
otherwise noted.
