NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A113716

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1 Filed 3/29/07 P. v. Lopez CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. GENARO GONZALEZ LOPEZ, Defendant and Appellant. A (San Mateo County Super. Ct. No. SC059726A) Genaro Gonzalez Lopez appeals the sentence imposed following his no contest plea to assault with a deadly weapon. (Pen. Code, 1 245, subd. (a)(1).) He contends the trial court erred by ordering him to pay a $75 per month probation supervision fee. We conclude Lopez waived his claim by failing to object to the fee at sentencing. However, we agree with Lopez that the court s records should be modified to reflect that payment of the probation supervision fee is not a condition of probation. We affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND Lopez and Jannett Mendoza separated in February 2005 after maintaining a relationship for several years. 2 On October 5, 2005, Mendoza s new boyfriend, Maximiliano Gutierrez, picked her up after work and drove her home. When they 1 All further statutory references are to the Penal Code unless otherwise specified. 2 Because the conviction resulted from a plea, the facts relating to the offense are derived from the probation report. 1

2 reached Mendoza s home, Lopez parked behind Gutierrez s vehicle and prevented Gutierrez from leaving. Lopez approached Gutierrez s vehicle with a knife in his hand and told him to get out of the car. Lopez then grabbed Mendoza by the throat and told her to get into his car. She complied, and Lopez and Mendoza drove off with Gutierrez following behind them in his car. Eventually, Lopez stopped his vehicle and told Mendoza to get out of his car and to tell Gutierrez to stop following. Lopez later explained to police he was very jealous. Lopez was charged in a four-count information with the following offenses: (1) kidnapping ( 207, subd. (a)), with an allegation that Lopez personally used a deadly weapon in the commission of the offense ( 12022, subd. (b)); (2) false imprisonment ( 236); (3) misdemeanor exhibition of a deadly weapon in a threatening manner ( 417, subd. (a)(1)); and (4) misdemeanor spousal battery ( 243, subd. (e)(1)). Pursuant to a negotiated agreement, Lopez pleaded no contest to a newly added charge of assault with a deadly weapon ( 245, subd. (a)(1)), and he admitted an allegation that the offense was a serious felony ( , subd. (c)(23)). The court dismissed the original four counts as a consequence of the negotiated plea. At the change of plea hearing, the trial court advised Lopez he faced fines of up to $10,000 plus a restitution fine of up to $10,000. Lopez stated that he understood. He also signed a change of plea declaration acknowledging the fines and fees that could be assessed as a result of his plea. Lopez s probation officer recommended that Lopez be admitted to probation subject to several conditions. Among other things, the probation officer recommended that Lopez pay $75 per month as a supervised probation fee pursuant to section b. Although the probation officer s report includes some background on Lopez s work and income history, the report contains no express findings regarding Lopez s ability to pay the supervised probation fee. The report also does not indicate Lopez was advised he was entitled to a court hearing to determine his ability to pay the fee. At the sentencing hearing on March 9, 2006, Lopez s defense counsel reported that she had reviewed the probation officer s report with Lopez and wished to submit the 2

3 matter of sentencing on the basis of the report. The trial court suspended imposition of sentence and placed Lopez on formal probation for three years. Among the terms and conditions of probation were that Lopez serve one year in county jail and that he pay a $200 restitution fine plus a 10% collection fee pursuant to section Lopez received pre-sentence credit totaling 231 days, composed of 155 actual days served plus 76 days for good-time and work-time credit. Following the recommendation in the probation officer s report, the court required Lopez to pay $75 per month for probation supervision fees pursuant to section b. Lopez confirmed he understood and accepted the terms and conditions of his sentence. Neither Lopez nor his counsel objected to any fees or fines imposed by the court. Lopez timely appealed. DISCUSSION 1. Because Lopez Failed to Object at Sentencing, Lopez Waived His Right to Pursue a Claim Based upon Section b. Lopez contends the trial court erred in ordering him to pay the cost of probation supervision because there is nothing in the record to indicate he was advised of his right to a hearing on his ability to pay probation costs or that he waived that right. Lopez also argues there is insufficient evidence to support a finding of his ability to pay. Under section b, the court may order a defendant who is granted probation to pay the reasonable costs of probation supervision. Such an order is dependent upon the defendant s ability to pay, however, and in determining ability to pay, any other fines, fees, or assessments are to be considered. ( b, subd. (a).) Section b, subdivision (a) requires that the defendant be advised of his right to a court hearing on the ability to pay, including the right to be represented by counsel, and that any waiver of that right must be knowing and intelligent. Absent such a waiver, the court must conduct an evidentiary hearing on the defendant s ability to pay. ( b, subd. (b).) Because there is no indication Lopez was advised of his right to a hearing or that he knowingly and intelligently waived that right, Lopez argues the matter must be remanded to allow the trial court either to accept a knowing and intelligent waiver of his right to a hearing or to conduct a hearing as provided in section b. (See People v. 3

4 O Connell (2003) 107 Cal.App.4th 1062, ) The People contend Lopez has forfeited his right to pursue a claim under section b as a result of his failure to object at sentencing. We agree that Lopez waived his right to pursue the issue on appeal. Generally, complaints about the manner in which a trial court makes or articulates its discretionary sentencing choices cannot be raised for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 355.) Likewise, conditions of probation may not be challenged on appeal unless an objection is made when the sentence is imposed. (People v. Welch (1993) 5 Cal.4th 228, ) Applying these principles to the imposition of section b probation supervision fees, the Court of Appeal held in People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), that failure to object in the trial court to statutory error in the imposition of a probation fee under section b waives the matter for purposes of appeal. (Valtakis, supra, 105 Cal.App.4th at p ) The Valtakis court noted that section b contains antiwaiver language but concluded it pertains to waiver in the trial court, not on appeal. (Valtakis, supra, 105 Cal.App.4th at p ) The court reasoned as follows: Here the antiwaiver language that helps shield defendants against fees beyond their ability to pay subserves a greater purpose of conserving the public fisc [citations], a purpose that would be sacrificed if we adopted Valtakis s reading. Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive. It would also be completely unnecessary, for the Legislature has provided mechanisms in section b for adjusting fees and reevaluating ability to pay without an appeal anytime during the probationary period ( b, subd. (c)) or the pendency of any judgment [citations]. (Valtakis, supra, 105 Cal.App.4th at p ) Lopez contends that Valtakis is distinguishable and does not bar his claim here. He claims he does not seek to strike the fee entirely, as in Valtakis, but asks only that the 4

5 matter be remanded either to allow the trial court to take a knowing and intelligent waiver of his right to a hearing or to conduct a hearing as provided in section b. Lopez s attempt to distinguish Valtakis is unavailing. The waiver doctrine does not turn upon what form of relief a defendant requests upon appeal. Where, as here, a defendant fails to make a timely objection to a discretionary sentencing choice, the defendant forfeits the right to pursue a challenge to that part of the sentence on appeal, irrespective of which remedy the defendant seeks on appeal. Our conclusion is unchanged by the fact that Lopez challenges the sufficiency of the evidence. In People v. Butler (2003) 31 Cal.4th 1119, 1123, our Supreme Court held that a defendant may challenge the sufficiency of the evidence supporting probable cause to order an HIV test under section despite the absence of an objection in the trial court. However, Butler does not dictate that Lopez may challenge the sufficiency of the evidence supporting his ability to pay the probation supervision fee. The Butler court observed that its conclusion was controlled by the specific terms of the HIV testing statute and the general mandate that involuntary HIV testing was strictly limited by statute, and for this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott,..., that absent timely objection sentencing determinations are not reviewable on appeal. (People v. Butler, supra, 31 Cal.4th at p. 1128, fn. 5.) In his concurring opinion, Justice Baxter, joined by Justice Chin, wrote separately only to make explicit what is implicit in the majority opinion. [ ] Thus, despite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant s ability to pay a fine [citations].... (Id. at p. 1130, conc. opn. of Baxter, J.) The concurring opinion expressly cites Valtakis as an example of an decision unaffected by the holding in Butler. (Ibid.) Even if we reached Lopez s claim of error, we would still hold it is not reasonably probable he would have obtained a more favorable result if the trial court had complied with section b. (See Valtakis, supra, 105 Cal.App.4th at p ) The probation 5

6 officer s report shows that Lopez had been employed in the two months before his arrest for the present offense as a plumber and an electrician apprentice. He was making $8.50 per hour. Previously, from April 2005 to September 2005, he had been employed as a landscaper, making $100 per day, and from July 2004 to February 2005 he had been employed as a laborer at a masonry company, also earning $100 per day. He was reported to be in good health and did not abuse alcohol or consume illegal drugs. The probation officer received several reference letters from former employers and friends of Lopez, indicating he was hard-working, non-violent, and responsible. These facts support the probation officer s implied determination that Lopez had the ability to pay $75 per month as a probation supervision fee. Ability to pay does not necessarily require existing employment or cash on hand. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) In light of the information reported by the probation officer, there is no evident prejudice justifying a reversal of the fees or a remand to reassess Lopez s financial circumstances as of the time he was sentenced. Despite our conclusion that Lopez waived his right to challenge the probation supervision fee on appeal, he is not necessarily without a remedy. As the court noted in Valtakis, the trial court may conduct additional hearings during the term of a probationary sentence to review the defendant s financial ability to pay the probation supervision fee. (Valtakis, supra, 105 Cal.App.4th at p. 1076; b, subd. (c).) 2. The Minute Order Must Be Modified to Reflect that Payment of the Probation Supervision Fee is not a Condition of Probation. The trial court s minute order indicates that payment of the monthly probation supervision fee is a condition of Lopez s probation. 3 The reasonable costs of probation are collateral costs and their payment may not be made a condition of probation. (People v. Hart (1998) 65 Cal.App.4th 902, 907.) The Attorney General joins Lopez in asking that we direct the clerk of the trial court to modify the minute order to reflect that 3 A separate document signed by Lopez and listing the conditions of his probation does not include payment of the probation supervision fee as one of the probation conditions. 6

7 imposition of the probation supervision fee be treated as a separate order entered at judgment and not as a condition of probation. We agree the minute order is incorrect and that it is appropriate to modify the order as the parties propose. DISPOSITION The trial court is directed to modify the minute order from the sentencing hearing held on March 9, 2006, to reflect that the probation supervision fee in the amount of $75 per month is a separate order entered at judgment and not a condition of probation. The judgment is affirmed as modified. McGuiness, P.J. We concur: Parrilli, J. Pollak, J. 7