The People v. Snow

Filed 8/26/13; pub. order 9/23/13 (see end of opn.)

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, C068833

Plaintiff and Respondent, (Super. Ct. No. CM031239)

v.

KEVIN PATRICK SNOW,

Defendant and Appellant.

Defendant Kevin Patrick Snow entered a negotiated plea of no contest to three counts of theft by false pretenses (Pen. Code, §§ 487, subd. (a), 532, subd. (a)) and one count of engaging in business without a license, a misdemeanor (Bus. & Prof. Code, § 7028) in exchange for dismissal of a white-collar crime allegation (Pen. Code, § 186.11). The court granted probation for a term of five years subject to certain terms and conditions including 120 days in jail. Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was denied. He contends that insufficient evidence supports his ability to pay the $736 presentence investigation report fee and the $164 per month probation

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supervision fee. We conclude that defendant forfeited this contention by failing to object to the imposition of these fees in the trial court. The probation officer recommended that defendant pay, among other fees, fines and restitution, $736 for the presentence investigation report and $164 per month for probation supervision. The probation officer opined that defendant was “able-bodied with marketable job skills, and therefore, he should have the ability to pay all fines, fees, and restitution, as ordered by the Court.” In a written statement of probation eligibility and mitigation, defendant sought a grant of probation, stating that he was willing to pay restitution, had set aside several thousand dollars to do so, and had the ability to comply with the terms and conditions of probation. He stated that he had always been the provider for his family. He did not state that he had no ability to pay fees or fines. In a supplemental report, the probation officer reiterated the recommendations for fees, fines and restitution. The probation officer noted a change in that defendant had reported that he had spent the money he had saved for payment of victim restitution. At sentencing, the court indicated that it had read the probation report and was prepared to follow the probation officer‟s recommendations. Defense counsel agreed with the probation officer‟s recommendations other than the 120 days in county jail which counsel claimed was “not appropriate for [defendant].” Defense counsel represented both defendant and his brother, George Snow, who was sentenced on the same date. Defense counsel stated that “[t]hey are prepared to pay $5,000 toward restitution” immediately and “[t]hey would commit to an O/R order at $1,000 a month of continual payment to court compliance in addition to the [$]5,000 today.” Defense counsel stated that defendant was employed. Defense counsel did not state that defendant did not have the ability to pay the recommended fees and fines.