California Court of Appeal Jul 3, 2014 No. E058233Unpublished
Filed 7/3/14 P. v. Alvarado CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058233
v. (Super.Ct.No. NF1200489)
ANTONIO MORALES ALVARADO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard A. Erwood,
Judge. Affirmed.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton, and Heather
M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
A jury convicted defendant and appellant Antonio Morales Alvarado of assault
with a knife under Penal Code1 section 245, subdivision (a)(1) (count 1); domestic
criminal threats under section 422 (count 2); and spousal battery under section 243,
evidence supported a finding of ability to pay probation report and supervision fees];
People v. Valtakis, supra, 105 Cal.App.4th at pp. 1068, 1071-1076 [a defendant cannot
challenge on appeal the issue of noncompliance with statutory procedures while imposing
a section 1203.1b fee when he failed to assert any objections in the trial court]; People v.
McCullough, supra, 56 Cal.4th at pp. 597-599 [the defendant forfeited his claim that
there was insufficient evidence to support his ability to pay a booking fee because he
failed to object below]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [challenge to
crime prevention fee forfeited]; but see People v. Pacheco, supra, 187 Cal.App.4th at p.
1397 [no forfeiture of issue regarding whether section 1203.1b fee was properly
imposed], disapproved by People v. McCullough, supra, 56 Cal.App.4th at p. 599.)2
In People v. Valtakis, supra, 105 Cal.App.4th at pp. 1068-1076, the defendant
entered a negotiated plea, the court placed defendant on probation, and a probation
supervision fee was imposed under section 1203.1b. The probation officer did not
evaluate the defendant’s ability to pay or advise him of his right to a hearing on the issue,
as required under section 1203.1b. On appeal, the defendant, like defendant in this case,
challenged the probation fee. The appellate court held that the defendant’s failure to
2 The California Supreme Court is currently considering the issue of whether a defendant, who fails to object to an order for payment of probation supervision fees, forfeits a claim that the trial court erred in failing to make a finding of an ability to pay. (People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted Nov. 26, 2013, S213571, and People v. Trujillo (2013) Cal.App.Unpub. LEXIS 5913, review granted Nov. 26, 2013, S213687 [nonpub. Opn.].)
8
object to noncompliance with the probation fee procedures of section 1203.1b waived the
issue on appeal. (Ibid.)
In People v. McCullough, supra, 56 Cal.4th 589, the Supreme Court granted
review to determine whether a defendant, who does not object that the evidence is
insufficient to support a finding of his ability to pay a booking fee under Government
Code section 29550.2, forfeits his right to challenge the trial court’s imposition of the fee
on appeal. (Id. at p. 591.) The Supreme Court distinguished “between an alleged factual
error that had necessarily not been addressed below or developed in record because the
defendant failed to object, and a claimed legal error, which ‘can be resolved without
reference to the particular sentencing record developed in the trial court.’ [Citation.]”
(Id. at p. 594.) The court stated: “[W]e may review an asserted legal error in sentencing
for the first time on appeal where we would not review an asserted factual error. (Ibid.)
“In the case of an asserted legal error, ‘[a]ppellate courts are willing to intervene in the
first instance because such error is “clear and correctable” independent of any factual
issues presented by the record at sentencing.’ [Citation.]” (Ibid.) Ultimately, the
Supreme Court concluded that a defendant’s ability to pay a booking fee does not present
a legal issue; therefore, a defendant is not entitled to transform a factual issue into a legal
issue by asserting the record’s deficiency as legal error. The court held that the
defendant’s failure to object to the trial court’s imposition of a jail booking fee under
Government Code section 29550.2 forfeited a substantial evidence claim regarding
evidence of a defendant’s ability to pay because “a court’s imposition of a booking fee is
confined to factual determinations.” (Id. at p. 597.)
9
Here, the probation report was dated by the probation officer on December 20,
2012. At the sentencing hearing held on January 4, 2013, defense counsel indicated that
he was in receipt of the report and submitted on the report. In the report, the probation
officer recommended that defendant pay the challenged probation fees. Defendant,
therefore, had notice of the probation report’s recommendation that he pay the fees.
However, at no time during the sentencing hearing did defendant or his counsel raise any
objection to any issue with respect to any of the challenged fees. When the trial court
specifically ordered defendant to pay the probation supervision fees and report fees,
neither defendant nor his counsel objected. Having failed to do so, defendant has
forfeited his claim for purposes of appeal. (People v. McCullough, supra, 56 Cal.4th at
pp. 597-99; People v. Valtakis, supra, 105 Cal.App.4th at p. 1068.)
Defendant’s reliance on People v. Pacheco, supra, 187 Cal.App.4th 1392, is
misplaced. In Pacheco, the trial court ordered a criminal justice administration fee, a
monthly probation supervision fee, and attorney fees without making a determination of
defendant’s ability to pay; defense counsel did not object. (People v. Pacheco, supra,
187 Cal.App.4th at pp. 1396, 1397.) On appeal, the defendant argued that the evidence
of his ability to pay was insufficient and the People contended that the issue was waived.
(Id. at p. 1397.) The appellate court found no evidence that defendant was advised of his
right to a hearing for the probation supervision fee, and no evidence that the defendant
waived that right. (Id. at p. 1401.) In addition, the appellate court found no evidence that
either the probation officer or the trial court made a determination that the defendant had
10
an ability to pay the challenged fees. (Id. at pp. 1401-1404.) Pacheco, however, was
overruled by People v. McCullough, supra, 56 Cal.4th 589, as discussed above.
Defendant, however, argues that People v. McCullough, supra, 56 Cal.4th 589,
does not apply by distinguishing the challenged fees in this case under section 1203.1b
from the booking fees involved in McCullough. In McCullough, the Supreme Court
illustrated the difference between booking fee statutes with statutes that provide
procedural guidelines, such as section 1203.1b. (Id. at pp. 498-499.) The court noted
that section 1203.1b sets forth “procedural requirements or guidelines for the ability-to-
pay determination,” and “[c]ertain fee payment statutes require defendants to be apprised
of their right to a hearing on ability to pay and afford them other procedural safeguards.”
(Id. at p. 598.) Based on this, defendant claims that “McCullough suggests that
[defendant’s] lack of objection does not forfeit his claim.” We disagree with defendant’s
analysis. In McCullough, the Supreme Court, when discussing statutes with procedural
safeguards or guidelines, was simply providing another reason why an objection to the
ability to pay a booking fee was required. The court did not imply that only a booking
fee required an objection.
Therefore, based on People v. Snow, supra, 219 Cal.App.4th 1148; People v.
Valtakis, supra, 105 Cal.App.4th 1066; and People v. McCullough, supra, 56 Cal.4th
589, we hold that defendant has forfeited his claim.
Notwithstanding defendant’s forfeiture, his contention fails on the merits because
the trial court made an implied finding of defendant’s ability to pay.
11
A trial court’s finding of an ability to pay may be implied, and will be upheld on
appeal if it is supported by substantial evidence. (People v. Phillips (1994) 25
Cal.App.4th 62, 70-71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
“Ability to pay” means the overall capacity of the defendant to reimburse the costs
or a portion of the costs of conducting the presentence report, and supervising the
defendant’s probation based upon various factors, including: (1) the defendant’s present
financial situation; (2) the defendant’s reasonably discernable future financial position,
i.e., a period of no more than one year from the time of hearing; (3) the defendant’s
likelihood of being able to obtain employment within a year from the date of the hearing;
and (4) any other factors that would impact the defendant’s ability to pay. (§ 1203.1b,
subd. (e).)
In this case, there was sufficient evidence that defendant had the ability to pay the
probation fees. Defendant was interviewed by the probation officer with his attorney and
an interpreter present. Defendant provided his social history. He was a 44-year-old man
in good health, and had no children of his own. Defendant had been employed full time
as a sous chef at the same restaurant for approximately 27 years. He was also
immediately released from custody at the sentencing hearing. Defendant had the ability
to earn money to pay his probation supervision and report fees. The court specifically
noted during the hearing that defendant “had steady and lengthy employment.”
The trial court, therefore, did not err in implicitly finding that there was sufficient
evidence to show that defendant had the ability to pay the probation supervision and
report fees.
12
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not improperly impose collateral fees as conditions of probation and that the defendant forfeited his challenge to the sufficiency of the evidence regarding his ability to pay probation costs by failing to object at sentencing. Alternatively, the court found sufficient evidence supported an implied finding of the defendant's ability to pay.
Issues
Whether the trial court improperly imposed collateral fines and fees as conditions of probation.
Whether the defendant forfeited his challenge to the imposition of probation costs by failing to object in the trial court.
Whether there was sufficient evidence to support the trial court's finding of the defendant's ability to pay probation costs.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Based on the probation report, oral pronouncement during the sentencing hearing, and the minute order, we find that the challenged fees were not imposed as conditions of probation.”
“Having failed to do so, defendant has forfeited his claim for purposes of appeal.”
“The trial court, therefore, did not err in implicitly finding that there was sufficient evidence to show that defendant had the ability to pay the probation supervision and report fees.”