IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 17, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES DONALD BROCK, DEFENDANT AND APPELLANT.
Mendocino County Super. Ct. No.MCUK-CRCR-09-91258
The opinion of the court was delivered by: Kline, P.J.
P. v. Brock CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
STATEMENT OF THE CASE
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 validity. (Rule 8.304(b)(4)(B); see also People v. Lloyd (1998) 17 Cal.4th 658, 664 (Lloyd).)
We must construe Brock's notice of appeal liberally in favor of its adequacy. (See Lloyd, supra, 17 Cal.4th at p. 665.) In Lloyd, the Supreme Court held that a defendant's notice of appeal was operative because the document implicitly stated the defendant's grounds for appeal. (Ibid.) The defendant's notice of appeal, though it was drafted on a form, bore the handwritten notation " 'Rule 31(d)' " and, where the form identified that " 'Defendant hereby appeals from the judgment . . . ,' " he had crossed out the word " 'judgment' " and replaced it with the word " 'sentence.' " (Id. at pp. 664-665.) The court concluded that the scant information contained in the defendant's form provided adequate notice of his grounds for appeal. (Id. at p. 665.)
Using Lloyd, supra, 17 Cal.4th 658, as a benchmark, we believe Brock's notice of appeal adequately states his grounds for appeal. Brock's notice of appeal expressly states that he appeals from the judgment and the sentence imposed below. Also apparent, Brock received his sentence only after the entry of his guilty plea. Taken together, this information provides adequate notice that Brock appeals issues related to his postplea sentencing order, an appeal permitted by rule 8.304(b)(4)(B). We conclude Brock's notice of appeal is adequate to raise his challenge to the fees imposed by the trial court.
II. Brock Forfeited His Right to Appeal the Lack of a Section 1203.1b Hearing
"[S]section 1203.1b specifically authorizes the recoupment of certain costs incurred for probation and the preparation of preplea or presentence investigations and reports on the defendant's amenability to probation. . . . [T]he section requires determinations of amount and ability to pay, first by the probation officer, and, unless the defendant makes 'a knowing and intelligent waiver' after notice of the right from the probation officer, a separate evidentiary hearing and determination of those questions by the court." (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070, fn. omitted (Valtakis).)
Brock contends the trial court erred in failing to conduct the ability to pay hearing required by section 1203.1b.*fn4 The Attorney General counters that Brock forfeited the right to raise the issue on appeal because he did not object to the lack of such a hearing at sentencing.*fn5 Brock disagrees. He urges that trial counsel preserved the issue on appeal by the following remarks at sentencing:
"Mr. Brock is 58. He's got a minimal record. He got into this lifestyle of methamphetamine, I presume, because he's on SSI and probably used it to supplement part of his income. That brings up the issue of all the fees that are being assessed against him as part of this probation. When you consider the regular supervision fee, the drug testing fee of $510, the recommendation for a $600 state restitution fine, I'm sure he's going to be strapped for resources to try to find a way to pay these fees. I'd ask the Court for some leniency in terms of the fees.
"He has no issue with the amount of jail time. He feels that's fair. But the number of fees might place him into a dire situation and may tend for him to recommit the same offense. I'd ask the Court for some consideration. Thank you." (Italics added.)
While Brock's trial counsel did ask for leniency, he did not request a separate section 1203.1b hearing or an explicit "ability to pay" determination from the trial court. Given the close relationship between receiving a section 1203.1b hearing and the court's making an explicit ability to pay determination, a clear demand for the latter might arguably suffice to preserve the former for appeal. We do not believe that counsel's remarks constitute a demand for either a hearing or an explicit determination of Brock's ability to pay. We agree with the Attorney General that Brock forfeited his right to raise the issues of the lack of a section 1203.1b hearing and the court's failure to make an express determination of his ability to pay on this appeal.
A party forfeits the right to appeal procedural errors below by failing to object under circumstances indicating that the error was likely inadvertent. (People v. Braxton (2004) 34 Cal.4th 798, 813, citing People v. Ervin (2000) 22 Cal.4th 48, 73; People v. Vera (1997)15 Cal.4th 269, 275-276, disapproved on other grounds by People v. French (2008) 43 Cal.4th 36, 47; People v. Saunders, supra, 5 Cal.4th at pp. 589-590.) An objection preserves an issue for appeal so long as it "fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290 (Scott I), citing Code Civ. Proc., §§ 646, 647; Cooper v. Mart Associates (1964) 225 Cal.App.2d 108, 118; Grossblatt v. Wright (1951) 108 Cal.App.2d 475, 481.) Even a poorly phrased objection may preserve an issue for appeal, provided "the record shows that the court understood the issue presented." (Scott I, at p. 290, citing People v. Bolinski (1968) 260 Cal.App.2d 705, 722-723.) More recently, the California Supreme Court has said that to preserve an issue, a criminal defendant must not only object, but must press the trial court for a ruling. (People v. Ramirez (2006) 39 Cal.4th 398, 472.) "The failure to do so forfeits the claim. [Citations.]." (Id. at pp. 472-473; see People v. Braxton, supra, 34 Cal.4th at p. 813.)
A defendant forfeits the right to appeal the probation fees imposed absent a section 1203.1b hearing if the defendant does not first object to the deprivation of a hearing at the trial level. (See Valtakis, supra, 105 Cal.App.4th 1066, 1072.) In Valtakis, the trial court imposed a probation supervision fee at sentencing despite the fact that the defendant had not knowingly and intelligently waived his right to a separate hearing. (Id. at p. 1069.) The fee imposed was equal to the amount recommended by the probation report prepared before the hearing. (Ibid.) "The report contained no determination of ability to pay and no advisement of a right to a separate hearing on that issue." (Ibid.) Neither the defendant nor his attorney objected to any of the fees imposed. (Ibid.) On appeal, we held defendant's right to appeal the lack of a hearing was forfeit. (Id. at pp. 1071-1072.) We explained that the defendant's failure to object to noncompliance in the trial court effected a forfeiture of that issue on appeal. (Id. at pp. 1069, 1071-1072, citing People v. Welch (1993) 5 Cal.4th 228, 232-237 (Welch); People v. Scott (1994) 9 Cal.4th 331, 351-356 (Scott II); People v. Walker (1991) 54 Cal.3d 1013, 1023.)
Here, Brock forfeited his right to challenge the lack of a section 1203.1b hearing for reasons similar to those presented in Valtakis. First, Brock asserts probation department and trial court errors indistinguishable from the errors challenged by the defendant in Valtakis. For example, Brock's probation report both failed to make the required "ability to pay" determination and failed to reflect that Brock had been given notice of his right to a separate hearing. Similarly, both here and in Valtakis, the trial court also failed to hold such a hearing on its own initiative. Further, in both cases, the trial court imposed section 1203.1b fees recommended by the probation department and made explicit in the probation report. This means, in both cases, the defendant had notice of the recommended fees in advance of sentencing. Crucially, as in Valtakis, Brock's trial counsel failed to object to the absence of a separate fee hearing or to any other defect in the proceeding.
Although trial counsel did address the imposition of the "regular supervision fee, the drug testing fee of $510, the recommendation for a $600 state restitution fine," and stated that "the number of fees might place [Brock] into a dire situation," these comments do not suffice to preserve the hearing deprivation issue for appeal. Counsel's comments do not mention the court's statutory obligation to hold a section 1203.1b hearing. Nor do they question the basis for the probation report's fee recommendations so as to demonstrate the need for such a hearing. Nor did trial counsel dispute facts contained within the probation report, or otherwise indicate that there were specific facts that, when presented at a separate hearing, might call into question the recommendations contained within the probation report.*fn6 Rather, trial counsel requested leniency. He neither objected to the lack of a separate section 1203.1b hearing nor attacked the basis for the court's implicit determination that Brock had the ability to pay the recommended fees.
Were we to assume that counsel's comments were poorly phrased objections to the lack of a section 1203.1b hearing, nothing in the record suggests that the trial court understood counsel's comments as an attempt to raise the issue. (See Scott I, supra, 21 Cal.3d at p. 290 [an issue is preserved for appeal if the record shows that the trial court understood the objection].) In fact, the record indicates the opposite is true in this case: the trial court's statement that "[i]f Mr. Brock has a problem with any of [his fines], he can take it up with probation during the term of his probation" suggests that the court was not under the impression that counsel objected to the lack of a separate 1203.1b hearing on Brock's ability to pay. Furthermore, this comment was made late in Brock's sentencing hearing, well after the putative objection was made, as the trial court was fulfilling its statutory duty to notify Brock of his right to seek revision of the fee amounts should Brock's financial circumstances change. (§ 1203.1b, subd. (f).) (See fn. 9, post.) The record is empty of any more substantial discussion of either Brock's ability to pay or the lack of a 1203.1b hearing. For example, the trial court never issued a ruling in response to the comments made by Brock's trial counsel. (See People v. Ramirez, supra, 39 Cal.4th at pp. 472-473 [to preserve an issue, a criminal defendant must not only object, but must press the trial court for a ruling].) In short, the issue of a separate hearing was not raised below. Where there is no objection to the lack of a hearing, a challenge to the fees based on the deprivation of a section 1203.1b hearing is forfeit. (Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072.)
Recently, the Sixth Appellate District addressed a similar question, but came to a different conclusion. In People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), a defendant claimed that the trial court erroneously imposed various statutory fees, including a $64 per month probation supervision fee under section 1203.1b "without determining his ability to pay these fees and that there [was] insufficient evidence to support any such determination." (Id. at p. 1397.) The Court of Appeal allowed the defendant to raise the issues on appeal, despite his failure to first object to the absence of an ability to pay determination in the trial court. (Ibid.) The appellate court reasoned that since the defendant's claims were "based on the insufficiency of the evidence to support the order or judgment, . . . [such] claims do not require assertion in the court below to be preserved on appeal. [Citations.]" (Ibid.) We agree with Pacheco that sufficiency of the evidence claims are preserved for appeal even in the absence of an objection at the trial level and we address that issue below.
However, the Pacheco court did not limit its review to the sufficiency of the evidence claim. It also reversed the section 1203.1b probation supervision fee on the ground that there was "no evidence in the record that anyone, whether the probation officer or the court, made a determination of Pacheco's ability to pay the $64 per month probation supervision fee. Nor is there any evidence that probation advised him of his right to have the court make this determination or that he waived this right. In short, it appears that the statutory procedure provided at section 1203.1b for a determination of Pacheco's ability to pay probation-related costs was not followed." (Pacheco, supra, 187 Cal.App.4th at p. 1401.) "Moreover, these costs, which are collectible as civil judgments, cannot be made a condition of probation. [Citations.] For all these reasons, the $64 monthly probation supervision fee cannot stand." (Ibid.) The Pacheco court cites no authority for its apparent determination that the statutory compliance issue--as distinct from the sufficiency of the evidence issue--may be raised on appeal in the absence of some objection below. To the extent that Pacheco appears to conclude that a defendant who fails to object in the trial court to the lack of compliance with some aspect of the statutory procedure set forth in section 1203.1b for imposition of the probation supervision fee, nevertheless does not forfeit such challenge on appeal, we believe it is inconsistent with Valtakis, supra, 105 Cal.App.4th at pages 1069, 1071-1072, and the authorities cited therein. Therefore, we decline to follow it.
III. Substantial Evidence Supports Brock's Probation Fees
Brock also contends that the record lacks sufficient evidence to support the probation fees imposed by the trial court. His claim lacks merit.
The record contains the following information pertinent to Brock's ability to pay his probation fees. First, the probation report noted that Brock owns a home (his trailer), receives $875 per month in SSI disability income, and has monthly expenses of approximately $567. This works out to a net monthly savings of more than $300. Second, at sentencing, Brock's trial counsel asked the court for leniency with respect to costs, but did not dispute any of the facts contained in the probation report. Nor did trial counsel argue at sentencing that the probation report was somehow incomplete. Third, trial counsel's failure to request a section 1203.1b hearing indicates the absence of other pertinent information outside the record. Finally, the probation order only requires that Brock discharge his payment obligation at a minimum of $100 per month. Though Brock asserts on appeal that the probation report, and by extension the trial court's judgment, did not consider housing, utilities, or medical expenses, the report expressly mentions Brock's trailer home and includes estimates of both his food and medical costs.
Brock relies on two cases, People v. Adams (1990) 224 Cal.App.3d 705, 712-714 (Adams), and People v. Phillips (1994) 25 Cal.App.4th 62, 71-72 (Phillips), for the proposition that the record in the instant case does not contain facts sufficient to support the trial court's imposition of probation costs. Neither case advances his contention.
Adams, supra, 224 Cal.App.3d 705, involved a probation supervision and presentence investigation fee challenge brought by a defendant who did not receive a separate section 1203.1b hearing. (Id. at p. 707.) The Fourth Appellate District reversed, reasoning that because there was no hearing, no evidence on the defendant's ability to pay had been collected and the trial court's judgment, therefore, lacked sufficient evidentiary support. (Id. at p. 713.) Importantly, the appellate court noted that even if a separate hearing were not required by law, it would still reverse because the trial court's imposition of a prison term appeared likely to cost the defendant his job, affecting the defendant's ability to pay. (Ibid.) The court then concluded that by virtue of the likely result of the jail sentence imposed, the trial court's imposition of fees was inadequately supported by evidence that the defendant had an ability to pay. (Ibid.)
In Phillips, supra, 25 Cal.App.4th 62, the defendant appealed the imposition of presentence investigation report and monthly supervision fees. (Id. at p. 68.) At sentencing, the defendant objected to neither the fees imposed, nor the lack of a separate section 1203.1b hearing. (Id. at pp. 70-71.) He argued, relying on Adams, supra, 224 Cal.App.3d 705, that the suspended sentence also imposed by the trial court undermined the implicit ability to pay determination on which the challenged fees were based. (Id. at pp. 68, 70-71.) The Sixth Appellate District rejected this claim, finding that the evidence of defendant's ability to pay was not undermined by the defendant's impending incarceration. (Id. at p. 71.) It observed that, at sentencing, defendant admitted earning $800 per month, conceded that he had no other financial obligations and did not challenge any of the facts or recommendations made by the probation report. Further, the trial court imposed fees identical to those recommended by the probation report along with a suspended jail sentence with a surrender date set for two months from sentencing. (Id. at pp. 66, 70-71.) The Court of Appeal affirmed the judgment, explaining that the suspended sentence provided the defendant with adequate time to earn money with which to pay his fees. (Id. at pp. 71-72.) It concluded that the record contained sufficient evidence to support the trial court's implicit determination of the defendant's ability to pay. (Id. at p. 71.)
Neither Phillips nor Adams furthers Brock's contention that the probation costs at issue here are insufficiently supported by the record.
Brock trades on differences between Phillips, supra, 25 Cal.App.4th 62, and his case, to suggest that where the Sixth Appellate District affirmed, we must now reverse. He argues that while the defendant in Phillips was employed and had few expenses at the time of sentencing, Brock "[has] substantial present and future expenses that [are] likely to exceed his fixed monthly SSI disability income." Our review of the record contradicts Brock's contention. No evidence of financial difficulty was presented below. Nor has Brock pointed to any specific facts to support his claim that he has substantial present or future expenses beyond those listed in the probation report. Instead, the record reveals that Brock's SSI income leaves him with a monthly savings of approximately $300, which appears sufficient for him to meet the monthly $100 payment obligation imposed by the trial court. As in Phillips, the evidence before the court at sentencing adequately supported the trial court's implied determination of Brock's ability to pay the probation costs imposed.
Brock's reliance upon Adams, supra, 224 Cal.App.3d 705, is equally unpersuasive. In Adams, the Court of Appeal reversed the trial court because the latter failed to conduct a section1203.1b hearing. (Id. at pp. 712-713.) As already discussed, Brock forfeited his right to challenge the lack of a hearing. Moreover, the evidentiary defects that concerned the Adams court are not present here. (Id. at p. 713.) The Adams court relates that the defendant had a job, that the trial court's imposition of fees relied on the defendant retaining his job, and that the trial court then imposed a sentence that would cost the defendant his job. (Ibid.) In other words, the sentence imposed by the Adams trial court negated all of the evidence it had relied upon in reaching its ability to pay determination. In Adams, the imposition of a prison sentence rendered the other evidence insufficient. Unlike Adams, nothing in this record conflicts with the trial court's implicit determination that Brock had the ability to pay the challenged fees. Honoring our obligation to view the evidence in a light most favorable to the prevailing party (see Phillips, supra, 25 Cal.App.4th at pp. 71-72), we conclude that substantial evidence supports the fees imposed at sentencing.
As the trial court advised, should Brock's financial circumstances change, section 1203.1b, subdivision (f), affords him ample means to remedy any difficulties by seeking a modification of the trial court's judgment.*fn7
The judgment is affirmed.