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The People v. Jose Luis Vasquez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 3, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE LUIS VASQUEZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. 06F04563)

The opinion of the court was delivered by: Butz , J.

P. v. Vasquez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After being charged with the murder of a three-year-old boy, defendant Jose Luis Vasquez, pursuant to a plea agreement, pleaded no contest to four counts of aggravated corporal punishment and willful injury of a child, and was sentenced to 16 years eight months in state prison.

On appeal, defendant contends the trial court erroneously ordered him to pay $702 for the cost of preparing the presentence probation report, without determining whether he had the ability to pay that cost.

Because defendant failed to object to the imposition of this cost in the trial court, we conclude he has forfeited this claim on appeal. We also reject defendant's alternative claim of ineffective assistance of counsel for this failure to object. We therefore shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

There was strong evidence that defendant inflicted fatal blunt force on the three-year-old victim, and that defendant had a history of physically abusing the child. An autopsy revealed the child suffered from a lacerated liver, a torn pancreas, and a bruised lung. The pathologist opined that the child died from blunt force trauma to the abdomen.

Defendant was 16 years old at the time of the fatal incident, but was charged as an adult.

DISCUSSION

Ordering Defendant to Pay the Cost of the Presentence Probation Report

A. Probation Report Preparation Cost

Defendant contends the trial court erroneously ordered him to pay the $702 cost of preparing the probation report, without determining whether he had the ability to pay it. (Pen. Code, § 1203.1b.)

However, defendant's "failure to object in the trial court to . . . the imposition of a probation fee under [Penal Code] section 1203.1b waives the matter for purposes of appeal." (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.)

B. Ineffective Assistance of Counsel

Alternatively, defendant contends that if an objection was necessary to preserve this issue, defense counsel's failure to object was ineffective assistance of counsel. We disagree.

To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 695-696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

We find counsel's performance was not deficient. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." (Strickland, supra, 466 U.S. at pp. 687-688 [80 L.Ed.2d at p. 693].)

Defendant was tried as an adult, and faced the most serious of charges--murder. Nevertheless, defense counsel was able to strike a plea bargain with the prosecution, which resulted in a prison sentence of 16 years eight months. Additionally, defendant acknowledged, at his plea hearing, that he understood he could face penalties up to $20,000 and full restitution to the victim. Finally, counsel reviewed the probation report with defendant, which specified the preparation cost of $702, and there was no indication that defendant objected to this cost.

Against this backdrop, we find defense counsel did not perform deficiently because (1) counsel struck a favorable deal as to prison time, which implicitly contemplated no fuss over fines and fees; (2) defendant accepted the ramifications of his plea agreement, including that he could pay fines and penalties up to $20,000; and (3) counsel discussed the terms of the probation report with defendant. "[R]arely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical." (People v. Lewis (2001) 25 Cal.4th 610, 678.)

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. DUARTE , J.

20120103

© 1992-2012 VersusLaw Inc.



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