People v. Nunez-Aguilar CA1/5

Filed 10/2/14 P. v. Nunez-Aguilar CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A139658 v. ALFREDO NUNEZ-AGUILAR, (Mendocino County Super. Ct. No. SCUK-CRCR-12-70360-02) Defendant and Appellant.

Alfredo Nunez-Aguilar entered a negotiated plea of no contest to one count of marijuana cultivation (Health & Saf. Code, § 11358) and was placed on probation. On appeal, Nunez-Aguilar contests the trial court’s imposition, pursuant to Penal Code section 1203.1b,1 of a presentence probation report fee, a probation supervision fee, and an installment payment collection fee. We conclude that Nunez-Aguilar forfeited the argument because he did not object to imposition of these fees below. Accordingly, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND2 On October 18, 2012, several police agents conducted a search of Nunez-Aguilar’s property. Outside the home the officers found 35 marijuana plants, and a few previously harvested plants. In the garage, the officers found 150 pounds of hanging, untrimmed marijuana plants. An additional 16 pounds of loose trimmed bud marijuana was located

1 Undesignated statutory references are to the Penal Code. 2 The facts are taken from the probation report.

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on drying racks and in other containers. The officers also found a loaded revolver, a semi-automatic handgun, a digital scale, a calculator, and $500. Nunez-Aguilar was charged, by information, with possession of marijuana for sale (Health & Saf. Code, § 11359; count one). The information also alleged that Nunez- Aguilar was armed with a firearm in the commission of the above offense (former § 12022, subd. (a)(1)). The information was later amended to charge Nunez-Aguilar with a lesser related offense of marijuana cultivation (Health & Saf. Code, § 11358; count two). In exchange for dismissal of count one and the firearm allegation, Nunez-Aguilar entered a plea of nolo contendere to count two. The trial court explained the potential sentence and that, among other consequences, Nunez-Aguilar could be required to pay fines that would not exceed $20,000. Nunez-Aguilar agreed to proceed and enter his no contest plea. Nunez-Aguilar also agreed he had enough time to discuss the matter with his attorney and the attorney had answered all his questions. Nunez-Aguilar’s counsel joined in the plea, which the trial court accepted. In advance of sentencing, a probation report was prepared that recommended Nunez-Aguilar pay a $652 presentence investigation fee and $81 per month in supervision fees. A proposed order of probation indicated that, if probation fees are paid in installments, Nunez-Aguilar would be subject to a $75 installment payment collection fee. The probation report also included information regarding Nunez-Aguilar’s financial status and indicated that he “has been steadily employed for the past ten years,” most recently as a supervisor at a lumber company. However, the report contained no express determination of ability to pay and no advisement of a right to a hearing on that issue. At sentencing, Nunez-Aguilar’s trial counsel was specifically asked if he had any concerns with the probation recommendations. Nunez-Aguilar’s trial counsel objected only to a recommendation that Nunez-Aguilar be required to participate in a substance abuse treatment program. Trial counsel said he had no further comments on the probation report and that he thought “it’s a rather well done report. I have no real dispute with any of it.” Before finally submitting the matter, Nunez-Aguilar’s counsel said, “I