People v. Potts CA3

Filed 9/2/14 P. v. Potts CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C071922, C072227

Plaintiff and Respondent, (Super. Ct. Nos. SCR83473, SCR87040) v.

JERAD MARSHALL POTTS,

Defendant and Appellant.

Defendant pleaded guilty to assault with tear gas in Butte County case No. SCR83473 (Pen. Code, § 22810, subd. (g)(1))1 and no contest to disobeying a restraining order in Butte County case No. SCR87040 (§ 273.6). In exchange for defendant’s plea, the People agreed to dismiss any remaining charges along with a misdemeanor charge pending in Butte County case No. SCR84227.

1 Undesignated section references are to the Penal Code.

1

After reviewing the probation report and hearing argument from counsel, the trial court sentenced defendant to three years in state prison; however, the trial court stayed execution of that sentence, ordering defendant to serve three years of felony probation and 360 days in county jail. The trial court also awarded defendant 199 days of custody credit and imposed fines and fees totaling $2,846. Included in those fees were a $164 per month probation supervision fee, a probation report preparation fee of $736, and $420 for the services of the public defender. Defendant did not object to the fees imposed. Defendant now contends there is insufficient evidence to support the trial court’s finding he had the ability to pay those fees. The People argue defendant has forfeited his arguments by not objecting in the trial court. Except for defendant’s contention regarding reimbursement of attorney fees, we agree defendant forfeited his arguments by not objecting in the trial court. The right to appellate review of a nonjurisdictional sentencing issue is forfeited by failing to raise the issue in the trial court. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) This rule of forfeiture has repeatedly been applied to appellate challenges of a fine or fee, including challenges based on insufficiency of the evidence. (People v. McCullough (2013) 56 Cal.4th 589, 597-598; People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) Defendant therefore forfeited his right to appeal those fees that are not attorney fees. Regarding the order for attorney fees, we agree with the court in People v. Viray (2005) 134 Cal.App.4th 1186 (Viray) that a forfeiture cannot “properly be predicated on the failure of [defense counsel] to challenge an order concerning his own fees” given the “patent conflict of interest” (id. at p. 1215, italics omitted). “In any case in which a defendant is provided legal assistance . . . , upon conclusion of the criminal proceedings in the trial court . . . , the court may, after notice