People v. Chadd CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065687 Plaintiff and Respondent, (Super. Ct. No. F12300010) v.

LESLIE ZELMAN CHADD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno 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-

* Before Kane, Acting P.J., Poochigian, J. and Franson, J.

Defendant Leslie Zelman Chadd pled no contest to assault by means likely to cause great bodily injury (Pen. Code, § 245, former subd. (a)(1), now subd. (a)(4))1 and admitted a prior strike conviction (§§ 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: “The [trial] court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative.” We conclude defendant forfeited the issue by not objecting at sentencing. (Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072 [§ 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 1 All statutory references are to the Penal Code unless otherwise noted.