California Court of Appeal Jul 13, 2015 No. E060718Unpublished
Filed 7/13/15 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E060718
v. (Super.Ct.No. BAF1300205)
FRANCISCO JAVIER HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant and appellant Francisco Javier Hernandez appeals after he was
convicted of kidnapping (Pen. Code, § 209, subd. (a)), assault by means of force likely to
produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and robbery (Pen. Code,
§ 211). The trial court found this was an unusual case pursuant to California Rules of
Court, rule 4.413, and granted probation; the court placed defendant on supervised
The Pacheco court rejected the People’s assertion that the claims were forfeited on
appeal. The court stated that the defendant’s “claims are based on the insufficiency of the
evidence to support the order or judgment. We have already held that such claims do not
require assertion in the court below to be preserved on appeal. [Citations.] Respondent
offers nothing to convince us otherwise. We accordingly conclude that Pacheco’s claims
are not forfeited or waived on appeal and we will proceed to the merits.” (People v.
Pacheco, supra, 187 Cal.App.4th 1392, 1397.)
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Since Pacheco was decided, however, it has been overruled in part in both People
v. McCullough (2013) 56 Cal.4th 589 and People v. Trujillo (2015) 60 Cal.4th 850,
precisely on the question of the forfeiture of the right to ability-to-pay hearings, if no
objection or request was made in the lower court. In McCullough, the California
Supreme Court considered an order that the defendant pay a booking fee under
Government Code section 29550.2, subdivision (a). Government Code section 29550.2,
subdivision (a), provides in relevant part: “If the person has the ability to pay, a
judgment of conviction shall contain an order for payment of the amount of the criminal
justice administration [booking] fee by the convicted person . . . .” The court held that,
based on the statutory language, the defendant had a right to a determination of his ability
to pay before the court ordered him to pay the booking fee. However, a right—even a
constitutional right—may be forfeited in criminal as well as civil cases by the failure to
assert the right in a timely fashion. “ ‘Ordinarily, a criminal defendant who does not
challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or
her right to raise the claim on appeal.’ [Citation.] ‘ “The purpose of this rule is to
encourage parties to bring errors to the attention of the trial court, so that they may be
corrected. [Citation.]” ’ [Citation.] Additionally, ‘[i]t is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of the trial court,
could have been easily corrected or avoided.’ [Citation.]” (People v. McCullough,
supra, 56 Cal.4th 589, 593.)
8
Application of the forfeiture rule is not automatic; there are exceptions when
competing concerns may persuade the appellate court to conclude that the failure to
object does not forfeit review. For example, a forfeiture rule for failure to plead the
statute of limitations does not apply because it would run counter to the Legislature’s
intent in providing the statute of limitations. (People v. Williams (1999) 21 Cal.4th 335,
344.) “Parties may generally challenge the sufficiency of the evidence to support a
judgment for the first time on appeal because they ‘necessarily objected’ to the
sufficiency of the evidence by ‘contesting [it] at trial.’ [Citations.]” (People v.
McCullough, supra, 56 Cal.4th 589, 596.) Defendant has cast his claim as one for
insufficiency of the evidence, attempting to bring his challenge within the “sufficiency of
the evidence” exception to the forfeiture rule. However, in contrast to sufficiency-of-the-
evidence challenges to questions placed at issue in a trial—as to which an objection is
“necessarily” implied, there was no contested hearing below, and no factual record
developed, on the matter of defendant’s ability to pay. The McCullough court opined that
a reviewing court is more willing to review an issue in the first instance on appeal if it is
one of law, but that forfeiture applies to alleged factual errors. (Id. at p. 594.) “Ability to
pay” is dependent on the resolution of many factual considerations, and is not easily
reviewable on appeal in the first instance, particularly if no record has been developed.
(Id. at p. 592.)
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The court held that, “because a court’s imposition of a booking fee is confined to
factual determinations [i.e., ability to pay], a defendant who fails to challenge the
sufficiency of the evidence at the proceeding when the fee is imposed may not raise the
challenge on appeal.” (People v. McCullough, supra, 56 Cal.4th 589, 597.) Notably, the
court also stated: “Given that imposition of a fee is of much less moment than imposition
of sentence, and that the goals advanced by judicial forfeiture apply equally here, we see
no reason to conclude that the rule permitting challenges made to the sufficiency of the
evidence to support a judgment for the first time on appeal ‘should apply to a finding of’
ability to pay a booking fee under Government Code section 29550.2. [Citation.] We
disapprove People v. Pacheco, supra, 187 Cal.App.4th 1392, to the extent it holds the
contrary.” (People v. McCullough, supra, at p. 597.)
In People v. Trujillo, supra, 60 Cal.4th 850, the defendant had been ordered to pay
both a booking fee (Gov. Code, § 29550.1) and the cost of a probation investigation
report (Pen. Code, § 1203.1b). Defendant did not object below to either order. The
Court of Appeal, following McCullough, found that the defendant had forfeited the right
to challenge the booking fee, but reversed and remanded with directions to follow the
procedures outlined in Penal Code section 1203.1b for determining the defendant’s
ability to pay the probation cost of the presentence report. The Court of Appeal expressly
relied on its decision in People v. Pacheco, supra, 187 Cal.App.4th 1392; it found that
the failure to follow the procedures provided in the statute (determination by the
probation officer of the costs and the defendant’s ability to pay, duty to inform the
10
defendant of the right to a hearing on ability to pay, waiver by the defendant, and, if the
defendant does not waive the hearing, referral to the trial court for a determination of
ability to pay) was a deficiency compelling reversal. The California Supreme Court, on
review, disagreed and found that the failure to object below to the imposition of the
probation costs under Penal Code section 1203.1b resulted in a forfeiture of the ability-to-
pay issue on appeal. The court expressly “further disapproved” People v. Pacheco, “to
the extent it is inconsistent with this opinion.” (People v. Trujillo, supra, 60 Cal.4th 850,
858, fn. 5.)
Given the binding precedents (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455) concerning forfeiture (by failure to object) with respect to similar
ability-to-pay sentencing issues, we conclude that orders to pay incarceration costs under
Penal Code section 1203.1c are also subject to forfeiture by failure to object.
Defendant is not, however, wholly without remedy. Penal Code section 1203.1c,
subdivision (a), provides the trial court with discretion to conduct a hearing to modify the
order while defendant remains on probation: That is, “[t]he court may, in its discretion,
hold additional hearings during the probationary period.” Defendant may petition the
court to hold such a hearing.
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DISPOSITION
We conclude that defendant forfeited the issue raised on appeal (sentencing order
to pay presentence incarceration costs under Pen. Code, § 1203.1c) by failing to raise any
objection or to request a hearing below. The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
KING J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. A criminal defendant forfeits the right to challenge on appeal a trial court's failure to hold a hearing on the defendant's ability to pay presentence incarceration costs under Penal Code section 1203.1c if the defendant failed to object or request such a hearing in the trial court.
Issues
Whether a defendant forfeits the right to challenge an order for presentence incarceration costs by failing to request an ability-to-pay hearing in the trial court.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that defendant forfeited the issue raised on appeal (sentencing order to pay presentence incarceration costs under Pen. Code, § 1203.1c) by failing to raise any objection or to request a hearing below.”
“orders to pay incarceration costs under Penal Code section 1203.1c are also subject to forfeiture by failure to object.”