People v. Valenzuela CA1/3

Filed 1/26/15 P. v. Valenzuela CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A139615 v. SHEBOURNE PHILLIP VALENZUELA, (Contra Costa County Super. Ct. No. 5-121775-1) Defendant and Appellant.

After a jury trial, defendant Shebourne Phillip Valenzuela was found guilty of felony sexual penetration of an unconscious person (Pen. Code, § 289, subd. (d) 1). The court sentenced defendant to a term of six years in state prison and directed him to pay certain costs, fines and fees. On his appeal defendant contends we must strike an imposed cost of $1,000 to be paid to the Lafayette Police Department on the grounds that the award was not authorized as restitution pursuant to section 1202.4 and the prosecution forfeited any claim for reimbursement pursuant to section 1203.1h, subdivision (b). Defendant also contends the court erred in imposing certain costs, fines, and fees without first resolving his objection that he was unable to pay the imposed sums. As we now discuss, we conclude defendant is not entitled to any appellate relief other than a correction of certain errors in the court’s written orders and abstracts of judgment. In all other respects, we affirm the judgment.

1 All further statutory references are the Penal Code.

1

At sentencing the court directed defendant to pay the cost of $1,000 to reimburse the Lafayette Police Department for its payment of a SART [Sex Assault Response Team] examination performed on the victim by the Contra Costa Regional Medical Center. The parties agree, and we concur, that the court’s imposition of the cost of $1,000 was not authorized as restitution pursuant to section 1202.4. (See People v. Martinez (2005) 36 Cal.4th 384, 393 & fn. 1.) Nevertheless, we agree with the Attorney General that the trial court was authorized to impose the cost of $1,000 pursuant to section 1203.1h, subdivision (b). That section reads, in pertinent part: “In addition to any other costs which a court is authorized to require a defendant to pay, upon conviction of any offense involving sexual assault . . ., the court may require that the defendant pay, to the law enforcement agency . . . the cost of any medical examinations conducted on the victim for the collection and preservation of evidence.” (Ibid.) We reject defendant’s argument that the claim for reimbursement pursuant to section 1203.1h, subdivision (b), was forfeited because the prosecution made no such request at sentencing and the trial court did not order payment under that statute. The reporter’s transcript of the sentencing proceeding establishes that the prosecutor explicitly asked the court to direct defendant to pay $1,000 as reimbursement to the Lafayette Police Department for the cost of the SART examination. During colloquy with counsel regarding the request, the court stated it would order $1,000 to be paid to the Contra Costa Health Services. The prosecutor correctly told the court that the Lafayette Police Department had already paid the health services and the department was now seeking reimbursement. The court then replied, “So it would be payable to the Lafayette Police Department.” The prosecutor made no reference to the statutory authority for the request, albeit it cannot be disputed that such reimbursement is allowed under section 1203.1h, subdivision (b). More importantly, and pertinent to our discussion, is the fact that at no time did either the court or the prosecutor refer to the cost of $1,000 as restitution pursuant to section 1202.4. In the absence of any contrary reference in the court’s oral pronouncement, we assume the cost of $1,000 was imposed pursuant to section 1203.1h, subdivision (b), and not section 1202.4. However, we agree with defendant that the