P. v. Shun

Filed 10/19/06 P. v. Shun CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee Phillip Felice, Judge.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant was charged with possessing marijuana for the purposes of sale in violation of Health and Safety Code section 11359. His motion to suppress evidence pursuant to Penal Code section 1538.5 was denied by the trial court. Thereafter, defendant withdrew his plea of not guilty and entered a plea of guilty. At sentencing the court granted probation but ordered that he serve one year in jail. Defendant filed a notice of appeal from the ruling denying the motion to suppress, however, his sole contention on appeal is that the sentencing court erred when it ordered him to pay fees for preparation of the presentence report and probation supervision.^[1] We affirm.

The underlying facts disclose that police officers approached a parked vehicle and contacted defendant and Mr. Him. During their conversation the officers detected a strong order of marijuana. They received consent to search the vehicle and located almost $6,000 in the center console of the vehicle and ten or more pounds of marijuana inside the trunk. Both men were arrested. Defendant was charged with possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359.) He initially pled not guilty but entered into a change of plea following the court’s denial of his motion to suppress. At the time of the change of plea the court advised defendant that the court was required to impose mandatory restitution fines and that “fines and fees in this case could be as much as $10,000 depending on your financial ability to pay those fines and fees.” At the time of sentencing the court granted probation and ordered defendant to pay fees for the cost of preparation of the presentence investigation report and probation supervision. (Pen. Code, § 1203.1b, subd. (b).) He was ordered to pay $401 for the cost of the preparation of the presentence report due and payable within six months of his release from jail and was to pay $40 a month for supervision costs beginning 30 days after his release from jail. He was then ordered remanded and the bond was exonerated after which defendant’s counsel said, “Thank you, your Honor.” The court then conducted a hearing concerning the codefendant, Mr. Him.

Defendant contends the sentencing court erred by ordering him to pay these fees because the trial court did not hold a hearing on his ability to pay these fees, did not inform him that he had a right to a hearing and did not obtain a knowing and intelligent waiver of the defendant’s right to a hearing. Defendant requests that the case be reversed for the limited purpose of remanding the matter to the trial court to hold further hearings concerning his ability to pay these fees.

Penal Code section 1203.1b, subdivision (b) provides that the trial court may order a defendant to pay the cost of the presentence report and costs associated with probation supervision. It directs the probation officer to make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of supervision, investigation and reporting. The officer is also directed to 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. If the defendant does not waive his right to a hearing, the probation officer is to refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payment shall be made. The record does not show that the probation officer or the court ever determined defendant’s ability to pay or that he was notified that he had a right to a court hearing about his ability to pay or that he made any express waiver of his right to such a hearing. Defendant acknowledges that People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis) holds that a defendant’s failure to object to fees in the lower court waives the error on appeal but contends that Valtakis does not apply to him because the Valtakis opinion is mistaken and because defendant did not have a meaningful opportunity to object to the court’s order.

In Valtakis, the court held that “a defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b waives the claim on appeal, consistent with the general waiver rules discussed in People v. Welch (1993) 5 Cal.4th 228 ... and People v. Scott (1994) 9 Cal.4th 331 ....”^[2] Relying on People v. Scott, [defendant may not challenge trial court’s discretionary sentencing choices on appeal if he or she did not object at the time of sentencing], the Valtakis court reasoned:

“Here the antiwaiver language that helps shield defendants against fees beyond their ability to pay subserves a greater purpose of conserving the public fisc [citations], a purpose that would be sacrificed if we adopted Valtakis’s reading. Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silent 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 dependency of any judgment (id., subd. (f); fn. 2, ante).” (Valtakis, supra, 105 Cal.App.4th at p. 1076, original italics.)

We agree with the reasoning of Valtakis that a defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b forfeits the defendant’s claim on appeal. (See also People v. Welch, supra, 5 Cal.4th at p. 235 [rule foreclosing appellate review of claims not raised in trial court helps discourage imposition of invalid probation conditions and reduce number of costly appeals brought on that basis].)

Defendant contends that he did not have a meaningful opportunity to object to the court’s order for payment of these fees. It is true that the forfeiture rule does not apply unless there is a meaningful opportunity to object. (People v. Scott, supra, 9 Cal.4th at p. 356; People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez).) Defendant cites People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, which is referenced in Gonzalez, as an example of a proceeding in which there was no meaningful opportunity to object. In Dorsey the lower court never apprised the parties of its intention to order probation. After the court ordered probation it immediately declared a recess, affording the parties no opportunity to object. That circumstance is not present on this record. Here defendant was advised at the time of his change of plea that fines and fees could be imposed up to $10,000 depending upon his financial ability to pay. When the disputed fees were imposed by the court at the conclusion of the recitation of sentencing, no recess was declared. Instead, defendant’s counsel thanked the court and the court then proceeded to take up the case of defendant’s codefendant, Mr. Him. There was no reason why this defendant could not have raised these same objections to the court’s noncompliance with the probation fee procedures of Penal Code section 1203.1b at the conclusion of sentencing, rather than standing by silently as the court imposed the fees, and then contesting this for the first time on appeal, a practice that the Valtakis court described as “hideously counterproductive“ and “unnecessary.” (Valtakis, supra, 105 Cal.App.4th at p. 1076.)

Defendant also cites People v. O’Connell (2003) 107 Cal.App.4th 1062 in which the appellate court remanded the case for hearing pursuant to Penal Code section 1203.1b. However, as the People point out, the prosecution there agreed that the case should be remanded. The issue of forfeiture was not raised nor was it a subject of the court’s opinion. An opinion is only authority for the proposition it actually considers and decides. (In re Chavez (2003) 30 Cal.4th 643, 656.)

Defendant’s failure to object at sentencing to noncompliance with Penal Code section 1203.1b forfeited his claim on appeal. The judgment is affirmed.

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^* Before Levy, Acting P.J., Dawson, J., and Kane, J.

^[1] An appeal is not limited to issues stated in the notice of appeal. (People v. Jones (1995) 10 Cal.4th 1102, 1108-1113, overruled on another point in In re Chavez (2003) 30 Cal.4th 643, 656.)

^[2] The People point out that it is more correct to speak of defendant forfeiting his rights rather than waiving his rights in these circumstances. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)