People v. Klinger CA3

Filed 11/25/13 P. v Klinger CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C070403

v. (Super. Ct. No. 72007562)

STEVEN BRETT KLINGER,

Defendant and Appellant.

Pursuant to a negotiated plea agreement and while represented by appointed legal counsel, defendant Stephen Brett Klinger pled no contest to one count of inflicting corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a).)1 The trial court suspended imposition of sentence, granted defendant formal probation, and imposed various fines and fees. On appeal, defendant contends the trial court erred in failing to conduct a Marsden2 hearing. Defendant also challenges the imposition of a $296 booking fee (Gov. Code, § 29550.2), a $120 probation supervision fee (§ 1203.1b), a $40 court security fee (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373).

1 Undesignated statutory references are to the Penal Code. 2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

1

We conclude defendant waived any error as to the Marsden issue by entering his no contest plea. Thus, we affirm defendant’s conviction. However, we conclude the judgment must be reversed and remanded for the trial court to conduct a hearing on defendant’s ability to pay a booking fee and a probation supervision fee. On remand, the trial court shall also modify its order imposing fees to clarify that the court security fee and court facilities assessment are not conditions of probation. BACKGROUND In entering the plea agreement, defendant stipulated Placer County Sheriff’s Department report numbers S0119699 and S0119363 provided the factual basis for the plea to inflicting corporal injury on his wife, Jennifer Klinger. The facts of the offense are not at issue on appeal. DISCUSSION I Marsden Challenge Defendant contends the trial court erred in failing to conduct a Marsden hearing to substitute legal counsel for purposes of preparing a motion to withdraw his plea. We reject the contention. A. Procedural History on Marsden Issue On January 10, 2012, defendant stated in open court: “I would kind of like a different public defender myself.” However, defendant never asked for a Marsden hearing or to demonstrate specific grounds why defense counsel should be relieved. On January 23, 2012, defendant was represented by Placer County Deputy Public Defender Barry W. Jones when he pled no contest to one count of felony infliction of corporal injury on a spouse. Based on the plea, the trial court suspended imposition of sentence, granted defendant formal probation, and imposed various fines and fees.