NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Transcription

1 Filed 9/27/07 P. v.whigham CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. MONISHA WHIGHAM, Defendant and Appellant. A (Contra Costa County Super. Ct. No ) Defendant was convicted following a jury trial of evading a peace officer and causing serious bodily injury (Veh. Code, ), unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, 496d), driving on a suspended license (Veh. Code, ) and possession of burglary tools (Pen. Code, 466). Imposition of sentence was suspended and defendant was placed on probation for a term of five years. The court also ordered defendant to pay various fines and costs, three of which she now claims must be stricken: attorney fees in the amount of $500 (Pen. Code, 987.8), probation costs of $50 per month (Pen. Code, b), and a criminal justice administration fee of $170 (Gov. Code, ). We conclude that defendant s challenge to the attorney fees order is premature, and she has forfeited any objection to the order to pay probation costs, but we strike the imposition of a $170 criminal justice administration fee as inconsistent with the oral pronouncement of judgment.

2 STATEMENT OF FACTS 1 When an El Cerrito police officer in a marked patrol vehicle attempted to effectuate a traffic stop of a blue minivan on Cutting Boulevard in El Cerrito, the driver accelerated and a pursuit ensued. The minivan was driven erratically at excessive speeds in residential areas, and failed to stop at intersections with stop signs. The officer terminated the pursuit on Center Avenue in Richmond when directed to do so by her sergeant for safety reasons. Within seconds after the officer stopped her patrol vehicle she heard a pop and noticed dust clouds ahead on Center Avenue as the minivan left the roadway. Five seconds later, the officer reached the minivan, which had crashed into the front of a house. The officer observed defendant coming out of the van through the driver s side front door. As defendant crawled out of the minivan, the officer ordered her to lie face down on the ground. No one else was in or around the minivan. Defendant was arrested and placed in handcuffs. She was in a dazed state and sustained an abrasion injury to her cheek that appeared to the officer to be from deployment of the driver s side air bag. The steering column of the minivan was cracked and had a screwdriver in the ignition. The minivan was reported stolen. A duffel bag retrieved from inside the minivan had female clothing only in it. Defendant falsely identified herself to the officer as Ronesha Whigham, which is the name of her sister. Before the minivan crashed into the house, it collided with a silver Ford Mustang. Both the driver and passenger of the Mustang incurred serious injuries as a result of the crash. Defendant testified in her defense that her boyfriend rather than she was driving the minivan when it was pursued by the police and crashed. She was lying down in the 1 In light of the issues raised in this appeal which relate only to the imposition upon defendant of various fees and costs, our recitation of the facts that relate to the underlying offenses will be concise. 2

3 backseat behind the driver during the police chase and did not see nothing. (Sic.) Defendant added that her boyfriend left the minivan and ran toward a back yard after the collision. DISCUSSION I. The Order to Pay Attorney Fees. Defendant argues that the trial court erred by ordering her to pay $500 in attorney s fees pursuant to Penal Code section She claims that the order has two flaws: First, the court failed to make an express or implied finding of her ability to pay the attorney s fees, as required by the statute; and second, no evidence of her ability to pay is found in the record. Defendant therefore submits that the order imposing $500 in attorney s fees must be stricken. The authority to order a defendant to pay the costs of court appointed counsel is well defined. Subdivision (b) of section of the Penal Code (section 987.8(b)) [] provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him. The subdivision further provides that the court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. [Citation.] (People v. Flores (2003) 30 Cal.4th 1059, 1061, fn. omitted.) Under this section, a court may order a defendant who has the ability to pay to reimburse the county for all or a portion of the costs of his legal representation. (People v. Smith (2000) 81 Cal.App.4th 630, 637.) However, the defendant must be given notice and afforded specific procedural rights, including the right to present witnesses at the hearing and to confront and cross-examine adverse witnesses. [Citations.] The statute also requires the court to advise a defendant prior to the furnishing of legal counsel of his potential liability for the costs of court-appointed counsel. [Citation.] The statute provides that the ability-to-pay determination is to be made upon the conclusion of the criminal proceedings. [Citation.] (People v. Phillips (1994) 25 Cal.App.4th 62, 73.) Absent notice and a hearing and a finding of the defendant s ability to pay for the services of 3

4 court-appointed counsel, an order to reimburse legal fees is invalid and must be stricken. (People v. Faatiliga (1992) 10 Cal.App.4th 1276, ) While we agree with defendant that neither evidence nor a determination of ability to pay attorney fees is found in the record, no error by the trial court has been established. As we read the court s order in light of the entire record we conclude that defendant has not yet been required to pay attorney fees. At the sentencing hearing the trial court assess[ed] $500 for the services of the Public Defender through trial. Defendant was not order to pay the assessed amount, however. Rather, the court referred her to the Office of Revenue Collection with respect to [her] representation. 2 We interpret the order, which we acknowledge may not be a model of clarity, to mean that an order to pay the assessed fee may be imposed, dependent upon the defendant s ability to pay as determined by the Office of Revenue Collection. This interpretation of the trial court s order is reinforced by reference to the document defendant signed on the date of the sentencing hearing in which she was ordered to report to the Office of Revenue Collection for an interview to find out if you are able to pay all or part of the services of the attorney appointed by the Court to handle your case. If the Office of Revenue Collection finds that you are able to pay a certain amount, and you do not agree, you have the right to a hearing in this Court to decide what amount, if any, you must pay. The procedure followed by the trial court is consistent with the dictates of the statutory scheme. Pursuant to Penal Code section 987.8, subdivision (b), The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided. (People v. Flores, supra, 30 Cal.4th 1059, 1063.) The issue of defendant s obligation to pay attorney fees thus remains contingent upon a final determination of her ability to pay. Until that determination is made, the claim of error cannot be sustained and the contention is not ripe for review. (See In re Y.R. (2007) The minute order contains essentially identical language. 4

5 Cal.App.4th 99, 111; In re Cody C. (2004) 121 Cal.App.4th 1297, ; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019.) II. The Imposition of Probation Costs. Defendant also challenges the order for her to pay for the cost of probation services, not to exceed $50 per month, while you re on the grant of formal probation. Again, defendant claims that the court did not make an express or implied finding of her ability to pay, nor was there any evidence in the record supporting such a finding. The trial court is statutorily authorized to make an order for the costs of probation, depending on a defendant s ability to pay.... (People v. Bradus (2007) 149 Cal.App.4th 636, 641, italics added.) Penal Code section b provides in pertinent part: In any case in which a defendant is... granted probation..., the probation officer... shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision.... [ ]... The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer.... (People v. Washington (2002) 100 Cal.App.4th 590, 592, italics added.) The statute requires the probation officer to determine a defendant s ability to pay all, or a portion of the reasonable cost of probation supervision and probation report preparation. The statute also requires the probation officer to inform the defendant he has a right to have the court determine his ability to pay and the payment amount. The defendant may waive the right to such a determination only by a knowing and intelligent waiver. [Citation.] Absent such a waiver, a court must conduct an evidentiary hearing. If the court determines the defendant is able to pay all or part of the costs, the court is required to set the amount of the payment and order the defendant to pay that amount to the county in a manner that is reasonable and compatible with the defendant s financial ability. [Citation.] The statute also provides for additional hearings during the period of probation to review the defendant s ability to pay the probation costs. (People v. Hall (2002) 103 Cal.App.4th 889, ) [B]efore ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant s ability to pay and the amount of 5

6 payment. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) Unless the record indicates that the probation department or the court made a determination of a defendant s ability to pay for formal probation supervision, or that the defendant was informed of his right to a court hearing on his ability to pay, or that the defendant knowingly and intelligently waived such a hearing, as required by section Penal Code section b, an order to pay probation costs must be reversed. (People v. O Connell (2003) 107 Cal.App.4th 1062, ) The Attorney General concedes that notice of the right to a hearing and proof of ability to pay are prerequisites to imposition of probation costs under Penal Code section b, but argues that defendant s challenge to the order is foreclosed by her failure to object at trial. Under the rule of forfeiture and based upon the facts presented by the record before us, we agree. 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. [Citations.] As the United States Supreme Court recognized in United States v. Olano[ (1993)] 507 U.S. [725,] 731, [n]o procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citations.] 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.] [Citations.] [] [ ] In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a discretionary sentencing choice[]. [Citations.] (In re Sheena K. (2007) 40 Cal.4th 875, , fn. omitted; see also People v. Scott (1994) 9 Cal.4th 331, (Scott); People v. Welch (1993) 5 Cal.4th 228, (Welch).) When determining the cognizability of certain sentencing decisions under the forfeiture rule, the California Supreme Court has distinguished between unauthorized sentences those that could not lawfully be imposed under any circumstances in the 6

7 particular case [citation] and discretionary sentencing choices those which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. [Citation.] As to the former, lack of objection does not foreclose review: We deemed appellate intervention appropriate in these cases because the errors presented pure questions of law [citation] and were clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable. [Citation.] With respect to the latter, however, the general forfeiture doctrine applies and failure to timely object forfeits review. Such [r]outine defects in the court s statement of reasons are easily prevented and corrected if called to the court s attention. [Citations.] (People v. Stowell (2003) 31 Cal.4th 1107, 1113.) Drawing on the analytical underpinnings of the forfeiture rule articulated in Scott and Welch, the court in People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072, concluded that failure to object in the trial court to statutory error in the imposition of a probation fee under [Penal Code] section b waives the matter for purposes of appeal. While the probation officer in Valtakis recommended imposition of a $250 probation fee in the presentencing report, in contravention of the requirements of Penal Code section b neither the officer nor the trial court made a finding of ability to pay or gave notice to the defendant of the right to a separate hearing by the court. Further, the trial court did not hold a separate hearing or make its own determinations. (Valtakis, supra, at pp ) Nevertheless, on appeal those defects that resulted in imposition of a probation fee without a hearing or evidence of ability to pay were not found to result in an unauthorized sentence, for a probation fee could have been lawfully imposed had an ability to pay appeared, a clearly fact-bound determination. In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner [citation], which is exactly the claim here: the probation fees, otherwise permitted, were procedurally flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of evidence 7

8 that the defendant had the ability to pay). The unauthorized-sentence exception does not apply. (Id., at p ) The court further observed that cases have uniformly held that defendants likewise cannot complain for the first time on appeal of restitution fines imposed without findings or evidence of ability to pay [citations], even when characterized as unauthorized due to legal error [citations]. (Ibid.; see also People v. Tillman (2000) 22 Cal.4th 300, ; People v. Walker (1991) 54 Cal.3d 1013, 1023.) Finally, the court pointed out that to allow a defendant and his counsel to stand silently by as the court imposes a probation fee, (Valtakis, supra, at p. 1076) and then contest it for the first time on an appeal not only contravenes the objective of Penal Code section b and other recoupment statutes that reflect a strong legislative policy in favor of shifting the costs stemming from criminal acts back to the convicted defendant and replenishing a county treasury from the pockets of those who have directly benefited from county expenditures, (Valtakis, supra, at p ) but would also be completely unnecessary, for the Legislature has provided mechanisms in [Penal Code] section b for adjusting fees and reevaluating ability to pay without an appeal anytime during the probationary period [citation] or the pendency of any judgment [citations]. (Valtakis, supra, at p ) We agree with the court s reasoning in Valtakis, and follow it to find a forfeiture here. Defendant was informed through the probation report that imposition of costs pursuant to section b was recommended. She thus had the opportunity to object at the sentencing hearing, yet failed to do so. (People v. Phillips, supra, 25 Cal.App.4th 62, 74 75; People v. McMahan (1992) 3 Cal.App.4th 740, 750.) The imposition of probation costs was not an unauthorized sentence, but rather was imposed in a procedurally or factually flawed manner. The asserted errors in the imposition of probation costs could have been readily corrected or avoided and more appropriately reviewed on appeal had defendant interposed a timely objection in the trial court. (See People v. Stowell, supra, 3 Citing People v. Phillips, supra, 25 Cal.App.4th 62, 69. 8

9 31 Cal.4th 1107, 1113; People v. Gibson (1994) 27 Cal.App.4th 1466, ) Thus, in the interests of fairness to the sentencing court, fairness to the opposing party, and the need for an orderly and efficient administration of law and judicial economy, we conclude that defendant forfeited her challenge to the imposition of probation costs. (People v. Valtakis, supra, 105 Cal.App.4th 1066, 1076; People v. Gibson, supra, at p ) 4 III. The Criminal Justice Administration Fee. Defendant s final complaint is with the criminal justice administration fee of $170 under Government Code section , which is specified in the felony order of probation. Defendant points out that the trial court did not impose the criminal justice administration fee orally at the sentencing hearing. She relies on the general rule that the oral pronouncement is controlling, to argue that imposition of any fees in the felony probation order that were not included in the oral pronouncement must be stricken. Upon our review of the record we agree that the trial court failed to make a specific oral order for defendant to pay a criminal justice administration fee as a condition of her probation. The court suspended imposition of sentence and placed defendant on formal probation for five years. Restitution payments and fine, along with a court security fee and probation costs, were imposed, and the matter was referred to the probation department, but no reference was made by the court to a criminal justice administration fee. The felony probation order, which defendant signed, ordered her to pay $170 for criminal justice administration, but not [as] a condition of Probation. 4 We realize that an order for reimbursement of attorney s fees has been found to represent a distinguishable situation in terms of forfeiture, in that when a defendant s attorney stands before the court asking for an order taking money from the client and giving it to the attorney s employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel s omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client s representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment. (People v. Viray (2005) 134 Cal.App.4th 1186, ) 9

10 Defendant is also correct in her recitation of the fundamental rule that, An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court s oral judgment and may not add to or modify the judgment it purports to digest or summarize. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. (People v. Price (2004) 120 Cal.App.4th 224, 242.) Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The Attorney General does not dispute the preference given to an oral pronouncement of judgment, but maintains that where, as here, imposition of sentence was suspended by the court and probation was granted, the order under review is the order of probation signed by defendant which in this case contains the criminal justice administration fee rather than a judgment of conviction. Thus, the Attorney General claims that it is the order of probation, not the court s oral pronouncement or clerk s minutes that controls. The Attorney General also asserts that a booking fee is mandatory under Government Code section for a defendant who has received probation, so the probation order must include it. We would agree with the Attorney General if the criminal justice administration fee was mandatory. Where the court is required by law to impose a certain minimum term or fee as punishment for a criminal offense but fails to do so, the abstract of judgment or minute order may be amended or corrected to add that provision. (See People v. Sanchez (1998) 64 Cal.App.4th 1329, ; People v. Hong (1998) 64 Cal.App.4th 1071, ) Thus, in People v. Barriga (1997) 54 Cal.App.4th 67, 69 (Barriga), although the trial court failed to orally order defendant to submit to an AIDS test pursuant to Penal Code section , subdivision (a), his original sentence was subsequently increased after he had already commenced his state prison sentence by 10

11 addition of a provision in the minute order imposing the AIDS test. On appeal, the court observed that when the trial court is required to impose a certain minimum term but imposes a lesser term instead, the the unauthorized sentence is considered invalid or unlawful and may be increased even after execution of the sentence has begun. [Citation.] (Barriga, supra, at p. 69.) The court concluded: Pursuant to [Penal Code] section , subdivision (a), the trial court was required to order that appellant submit to an AIDS test given his conviction of unlawful sexual intercourse. Section , subdivision (a) provides in relevant part: Notwithstanding Sections [1] and [2] of the Health and Safety Code, the court shall order every person who is convicted of... a sexual offense listed in subdivision (e), whether or not a sentence or fine is imposed or probation is granted, to submit to a blood test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS).... The trial court has no discretion in the matter; the order for the AIDS blood test is mandatory. [Citations.] The trial court s sentence omitting the order for an AIDS test was unauthorized and subject to correction at any time. [Citations.] The trial court therefore properly amended the abstract of judgment to order the AIDS test. (Barriga, supra, at pp , italics added.) Moreover, conditions may be included in an order of probation that were not orally communicated to the defendant by the trial court. [P]robation is an act of clemency which imposes no penalties unless the conditions of probation are broken [citation]. The fact a person is granted probation, rather than a pardon, gives rise to the implication there are conditions. (People v. Thrash (1978) 80 Cal.App.3d 898, 901.) Thus, conditions [of probation] need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to [her] the contents of the order. [Citation.] (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1155; see also In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) 11

12 However, in contrast to the order for AIDS testing at issue in Barriga, imposition of a criminal justice administration fee is not mandatory in all cases under Government Code section As we read the statute, a prerequisite to an order to pay a criminal justice administration fee is the defendant s ability to pay. Section , subdivision (a) reads in 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 fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the county for the criminal justice administration fee. 5 (Italics added.) Under the statute, The fees are limited to the actual administrative costs and are assessed against all offenders who have the ability to pay the fee, without regard to the nature or severity of their respective offenses. (People v. Rivera (1998) 65 Cal.App.4th 705, 712, italics added.) We are convinced that the mandate of the statute to order reimbursement of the criminal justice administration fee as a condition of probation is modified by the previously stated condition that the person has the ability to pay. We perceive of no reason for the statute to treat differently those persons granted probation by imposing upon them a criminal justice administration fee without regard to ability to pay, while all others who suffer convictions cannot be ordered to pay the fee unless they are found to have the ability to do so. And in any event, the $170 criminal justice administration fee defendant 5 In full subdivision (a) of section provides: Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section or is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. 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 fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the county for the criminal justice administration fee. 12

13 was ordered to pay was specifically not imposed as a condition of her probation. We conclude that the imposition of a criminal justice administration fee upon defendant was not mandatory under Government Code section Absent any reference to the criminal justice administration fee in the oral pronouncement of judgment based upon a finding of defendant s ability to pay the fee, the discretionary addition of that provision to the felony order of probation was invalid. (See People v. Karaman (1992) 4 Cal.4th 335, ; People v. Mesa (1975) 14 Cal.3d 466, ; In re Candelario (1970) 3 Cal.3d 702, ) The omission of the criminal justice administration fee cannot be considered a clerical error or unauthorized sentence that was subject to correction or alteration in the felony probation order. (Cf., People v. Sanchez, supra, 64 Cal.App.4th 1329, ; People v. Hong, supra, 64 Cal.App.4th 1071, ; People v. Barriga, supra, 54 Cal.App.4th 67, 69 70; People v. Beck (1993) 17 Cal.App.4th 209, 214.) Accordingly, the imposition of the criminal justice administration fee must be stricken as inconsistent with the oral pronouncement of judgment. (People v. Zackery, supra, 147 Cal.App.4th 380, 389.) DISPOSITION The judgment is modified to strike the order for defendant to pay a $170 criminal justice administration fee. The cause is remanded to the trial court with directions to so correct the felony probation order. The judgment is affirmed in all other respects. 13

14 Swager, J. We concur: Marchiano, P. J. Stein, J. People v. Whigham, A112807