Mendocino County Super. Ct. No.MCUK-CRCR-09-91258
The opinion of the court was delivered by: Kline, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
James Donald Brock appeals from the judgment of the Mendocino County Superior Court, following his plea of guilty to possessing a controlled substance for sale (Health & Saf. Code, § 11378) with an arming enhancement (Pen. Code, § 12022, subd. (c).)*fn1 At sentencing, the trial court imposed various probation fees. Brock challenges the probation fees imposed by the court at sentencing on the grounds that the trial court did not consider or evaluate his ability to pay at a separate hearing as mandated by section 1203.1b. He further contends that any implicit determination made by the trial court about his ability to pay was not supported by substantial evidence. He asks this court to strike that portion of the judgment that requires him to pay the costs of the presentence report and a probation supervision fee. The Attorney General contends that Brock's appeal is not properly before us because Brock failed to secure a certificate of probable cause (§ 1237.5, subd. (b)) and because the notice of appeal filed by Brock fails to state his postplea grounds for appeal. The Attorney General also asserts that Brock forfeited his right to appeal the lack of a section 1203.1b hearing by failing to raise the claim at his sentencing. We agree that Brock's failure to object to the lack of a section 1230.1b hearing below precludes him from raising that issue on appeal. We shall also conclude that substantial evidence supported the fees imposed by the trial court. Therefore, we shall affirm the judgment.
The details of Brock's offense are not pertinent to this appeal. On June 22, 2009, he pleaded guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11378) with an arming enhancement (§ 12022, subd. (c)). On September 18, 2009, the trial court sentenced Brock to a 180-day jail term, minus 47 days for time served, followed by 36 months of probation. The court also imposed all fees recommended by the probation report, including the $669 presentence investigation report fee (§ 1203.1b) and the $69 monthly probation supervision fee (§ 1203.1b) specifically challenged by Brock on this appeal, as well as a $30 security fee (§ 1465.8), a $249 annual alcohol and drug testing fee, a $510 drug program fund fee (Health & Saf. Code, § 11372.7), a $35 collection fee for each separate fine and penalty assessment should he pay in installments (§ 1205, subd. (d)), and a $600 restitution fine (§ 1202.4). Brock filed a timely notice of appeal on October 1, 2009.
I. Brock's Appeal is Procedurally Proper
As a threshold matter, the Attorney General argues that Brock's appeal is procedurally defective for two reasons. First, the Attorney General contends that Brock cannot appeal the imposition of his probation fees because he failed to obtain a certificate of probable cause from the trial court before filing a notice of appeal. (See § 1237.5, subd. (b).)*fn2 The Attorney General also contends that even if Brock's appeal does not require such a certificate, it is nevertheless unreviewable because Brock's notice of appeal failed to state his postplea grounds for appeal as required by rule 8.304(b)(4)(B).*fn3 Both of these contentions lack merit.
First, no certificate of probable cause is required before a party can appeal a postplea sentencing order. (People v. Buttram (2003) 30 Cal.4th 773, 776-777 (Buttram); People v. Vera (2004) 122 Cal.App.4th 970, 977; see also People v. Shelton (2006) 37 Cal.4th 759, 766; rule 8.304(b)(4)(B).) In Buttram, the California Supreme Court observed that where a plea bargain does not specify or recommend a sentence, sentencing is a matter of judicial discretion and does not form part of a defendant's plea. (Buttram, supra, 30 Cal.4th at pp. 783-784 [former rule 31(d)].) The court explained that an appeal from a sentencing order must be dismissed for lack of a certificate of probable cause only if the appeal, in substance, challenges the validity of the underlying plea. (Id. at pp. 784-785; People v. Panizzon (1996) 13 Cal.4th 68, 76; see also rule 8.304 (b)(4)(B).) It then held that "an appeal challenging the court's exercise of [sentencing] discretion is not, in substance, an attack on the validity of the plea." (Buttram, at p.787.)
In the instant action, the probation fees imposed by the trial court were neither specified nor recommended as part of Brock's plea agreement. Rather, as in Buttram, supra, 30 Cal.4th 773, the imposition of fees in this case was a postplea occurrence. Brock's appeal is a challenge to the trial court's exercise of its sentencing discretion, not an attack upon the validity of his guilty plea. His appeal, therefore, does not require a certificate of probable cause.
Second, Brock's notice of appeal satisfies the demands of rule 8.304(b)(4)(B). That portion of the rule permits an appeal from a postplea order or judgment, absent a certificate of probable cause, where the notice of appeal states that it is based upon grounds that arose after entry of the plea and that do not attack the plea's ...