People v. Alacano CA4/2 ( 2015 )

Filed 1/14/15 P. v. Alacano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060162
v. (Super.Ct.No. INF1200787)
DANIEL ZANE ALACANO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. William S. Lebov, Judge.
(Retired Judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed with directions.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Anthony DaSilva and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Daniel Zane Alacano pled guilty to bringing
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methamphetamine into a Riverside County jail (count 1; Pen. Code, § 4573) and
possession of methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)).
Defendant additionally admitted his commission of the offenses constituted a violation of
his existing probation (Pen. Code, § 1203.2, subd. (b)). Pursuant to defendant’s plea
agreement, the court granted defendant three years formal probation on various terms and
conditions including the payment of fines and fees.
On appeal, defendant contends the imposition of various fines and fees must be
stricken because, although the fines and fees appear in the minute order, the court failed
to orally pronounce them at sentencing. Defendant additionally maintains the court erred
in imposing some of the fines and fees as conditions of probation. Finally, defendant
argues insufficient evidence supports a finding of defendant’s ability to pay certain
imposed fines and fees. We affirm the judgment, but remand the matter for the court to
strike the drug program fees, determine defendant’s ability to pay those fees, or reserve
ruling on a determination of defendant’s ability to pay those fees.
FACTUAL AND PROCEDURAL HISTORY1
On April 7, 2012, a Riverside County Sheriff’s deputy pulled over a vehicle in
which a parolee at large was riding. Defendant was the driver of the vehicle. He was
driving with an expired license.
The deputy arrested defendant and placed him in the back of the deputy’s patrol
car. The deputy asked defendant if he had anything illegal on him. Defendant responded
1 We take our recitation of the facts from the preliminary hearing transcript.
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that he did not. The deputy transported defendant to the Indio jail. As defendant was
being booked, and prior to being strip searched, defendant surrendered a bag of
methamphetamine.
The People charged defendant by information with bringing methamphetamine
into a Riverside County jail (count 1; Pen. Code, § 4573) and possession of
methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)). The People
additionally alleged defendant had committed a felony while released on bail or
recognizance (Pen. Code, § 12022.1) and had violated the terms of his probation in three
separate cases (Pen. Code, § 1203.2, subd. (b)).
On November 18, 2013, defendant and his attorney signed a sentencing
memorandum, which specifically listed the amounts and statutory bases for fines and fees
that would be imposed as conditions of defendant’s probation upon entering his plea.
The sentencing memorandum also included “additional orders of the court,” which
included payment of a drug lab fee and penalty assessment of $190, an additional drug
lab fee of $50, a drug education fee of $50, the costs of probation supervision ranging
from between $591.12 and $3,744, and reimbursement of attorney fees. Defendant’s
written plea agreement, signed by defendant and his attorney, reflects defendant would
pay fines of $280 and other costs and fees pursuant to his probation terms.
Prior to orally entering his plea, the court asked defendant if he had “[a]ny
questions about the agreement of the forms in any way.” Defendant responded he did
not. After defendant entered his plea, defense counsel made the following request: “The
only thing I would ask when looking at the probation terms, he’s not employed, doesn’t
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have any significant assets. On any of the fines or fee items in which you have the
question of whether he has the ability to pay, ask that you find no ability to pay. I believe
probation supervision costs, attorney’s fees, I don’t know about the booking fees if those
are ability to pay. I think they are.”
The court responded, “I’m happy to stand on the attorney’s fees and incarceration
fees. As far as the other ones are concerned, his ability to pay may change. He’s going
to be talking to Enhanced Collections Division [ECD]. He may—things may change in
the future for him. It’s a three-year period. I’ll do that at this time.” The court then
asked defendant, “Do you have any questions about the proposed terms and conditions on
the new felony case?” Defendant responded he did not. The court further asked, “No
need for me to read each term?” Defendant answered, “No.”
The court noted that defendant “must be in contact with [ECD], work out a
payment plan . . . .” The court asked if defendant understood “all the terms and
conditions that I’ve read to you?” Defendant responded that he did. The court asked if
defendant accepted all of them. Defendant answered that he did. The court did not orally
pronounce imposition of any fines or fees. The minute order of defendant’s sentencing
reflects imposition of the fines and fees as reflected in the sentencing memorandum
except a notation that the “Court finds that the Defendant does not have the ability to
reimburse the County for Attorney Fees.” The probation conditions are unnumbered and
the minute order does not indicate which fines and fees are conditions of probation and
which may not be.
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DISCUSSION
A. Oral Imposition of Fines and Fees.
Defendant contends all the fines and fees “imposed” pursuant to the minute order
must be stricken because the court never orally pronounced imposition of them. The
People maintain defendant invited any error or waived oral pronouncement of the fines
and fees by agreeing that the court did not need to read each term. We hold defendant
waived or invited any error.
“Although we recognize that a detailed recitation of all the fees, fines and
penalties on the record may be tedious, California law does not authorize shortcuts.”
(People v. High (2004) 119 Cal.App.4th 1192, 1200; accord, People v. Lopez (2013) 218
Cal.App.4th Supp. 6, 12 [trial court’s reference to fees and fines, but silence as to
amounts and bases required remand regardless of specifics contained in minute order and
sentencing memorandum].)
“‘Waiver is different from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a
known right.” [Citation.] Whether a particular right is waivable; whether the defendant
must participate personally in the waiver; whether certain procedures are required for
waiver; and whether the defendant’s choice must be particularly informed or voluntary,
all depend on the right at stake. [Citations.]’ [Citation.]” (People v. Collins (2001) 26
Cal.4th 297, 305, fn. 2.)
We hold that defendant waived or invited error with respect to the court’s
disinclination to recite on the record all the fines and fees it was imposing. Here, by
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virtue of the sentencing memorandum and plea agreement signed by defendant and his
attorney, it is apparent defendant agreed to the imposition of these fees in the amounts
recited in the minute order. Although we observe it is both the normal and better practice
to expressly recite all the fines and fees imposed and their bases. (People v. Hamed
(2013) 221 Cal.App.4th 928, 939 [“A detailed description of the amount of and statutory
basis for the fines and penalty assessments imposed would help the parties and the court
avoid errors in this area”].)
Here, the minute order does not contradict the court’s oral pronouncements; rather,
the minute order appears to reflect the court’s intent to impose fines and fees, which the
court failed to express on the record at all. Considering the record in its totality, it is
apparent the court intended to impose the fines and fees reflected in the minute order.
Indeed, defendant’s plea agreement, the sentencing memorandum, and the court’s express
mention of the terms of defendant’s probation and defendant’s need to “work out a
payment plan” with EDC all reflect the parties and the court’s understanding that
defendant would be required to pay the fines and fees expressed in the minute order.
Moreover, the court asked defendant if there was a “need for me to read each term.”
Defendant answered, “No.” Thus, defendant waived or invited any error in the court’s
failure to orally impose the fines and fees.
B. Fines and Fees Imposed as Conditions of Probation.
Defendant contends the court, at least as reflected in the minute order, unlawfully
imposed the court security, the probation supervision, and the court facilities fees as
conditions of defendant’s probation. The People maintain the court did not impose those
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fees as conditions of defendant’s probation, but rather imposed them as “additional orders
of the court.” We agree with the People.
“Certain fines such as those relating to restitution, for example, may by statute be
imposed as conditions of probation, but the court security fee is not one of them.
[Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402-1403, disapproved
of on another ground in People v. McCullough (2013) 56 Cal.4th 589, 599.) “The
imposition of the court security fee as a condition of probation [is] unauthorized because
like probation costs, this fee is collateral to [the defendant’s] crimes and punishment and
as such, its payment may not be made a condition of probation. [Citations.]” (Pacheco,
at p. 1402.) Likewise, payment of the costs of probation supervision may not be made a
condition of probation. (People v. Hall (2002) 103 Cal.App.4th 889, 892; Brown v.
Superior Court (2002) 101 Cal.App.4th 313, 321-322.) Similarly, the court facilities fee
may not be made a condition of probation. (People v. Kim (2011) 193 Cal.App.4th 836,
843; People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1414.)
Here, it does not appear the court intended to impose the court security, probation
supervision, and court facilities fees as conditions of defendant’s probation. The
sentencing memorandum indicates the parties’ intent that these fees would be imposed as
“additional orders of the court,” rather than conditions of defendant’s probation.
Likewise, in the minute order, these fees come after what appears to be the conditions of
defendant’s probation. Indeed, the criminal case report from defendant’s case available
online, of which we took judicial notice, specifically enumerates the conditions of
defendant’s probation. None of those enumerated probation conditions contain the fees
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defendant challenges here. Thus, the court security, probation supervision, and court
facilities fees were not improperly imposed as conditions of defendant’s probation.
C. Ability to Pay.
Defendant contends the court erred in imposing a criminal justice administration
fee (Gov. Code, § 29550, subd. (d)(2)), probation supervision fee (Pen. Code, § 1203.1b,
subd. (e)(2)), and drug program fees (Health & Saf. Code, § 11372.7, subd. (b)), without
making a determination of defendant’s ability to pay those fees. The People contend the
court referred the matter to EDC for a determination of defendant’s ability to pay; thus,
defendant’s complaint is premature because no ability to pay determination or order of
payment has been rendered. We disagree that the court imposed a criminal justice
administration or probation supervision fee. However, we agree the court improperly
imposed drug probation fees without making the requisite determination of defendant’s
ability to pay those fees.
“The court shall, as a condition of probation, order the convicted person, based on
his or her ability to pay, to reimburse the county for the criminal justice administration
fee, including applicable overhead costs.” (Gov. Code, § 29550, subd. (d)(2).) “In any
case in which a defendant is convicted of an offense . . . and in any case in which a
defendant is granted probation . . . the probation officer, or his or her authorized
representative, taking into account any amount that the defendant is ordered to pay in
fines, assessments, and restitution, 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 probation officer shall inform the defendant that the defendant is entitled to a
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hearing, that includes the right to counsel, in which the court shall make a determination
of the defendant’s ability to pay and the payment amount. The defendant must waive the
right to a determination by the court of his or her ability to pay and the payment amount
by a knowing and intelligent waiver.” (Pen. Code, § 1203.1b, subd. (a).)
The determination of defendant’s “ability to pay” means consideration of
defendant’s present financial situation; reasonably discernible future financial situation
which shall, in no event, involve consideration beyond a period of one year from the date
of the determination; the likelihood of defendant’s gaining employment within a year;
and any other relevant factors. (Pen. Code, § 1203.1b, subds. (e)(1)-(4).) A
determination of ability to pay must be supported by substantial evidence. (See People v.
Hoover (2011) 199 Cal.App.4th 1470, 1473; People v. Pacheco, supra, 187 Cal.App.4th
at p. 1398.)
“The court shall determine whether or not the person who is convicted of a
violation of this chapter has the ability to pay a drug program fee. If the court determines
that the person has the ability to pay, the court may set the amount to be paid and order
the person to pay that sum to the county in a manner that the court believes is reasonable
and compatible with the person's financial ability. In its determination of whether a
person has the ability to pay, the court shall take into account the amount of any fine
imposed upon that person and any amount that person has been ordered to pay in
restitution. If the court determines that the person does not have the ability to pay a drug
program fee, the person shall not be required to pay a drug program fee.” (Health & Saf.
Code, § 11372.7, subd. (b).)
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Here, defendant expressly objected to the imposition of any fines or fees in which
an ability to pay determination was required to be made. Contrary to defendant’s
contention, the court did not impose a criminal justice administration fee pursuant to
Government Code section 29550, subdivision (d)(2), which would require an ability to
pay determination. Rather, it imposed a booking fee pursuant to Government Code
section 29550, subdivision (a), which does not require such a finding. Indeed, the court
expressly ordered defendant was not required to pay “incarceration fees.” Thus, the court
did not improperly impose a criminal justice administrative fee.
Likewise, although the minute order reflects the court ordered payment of a fee
ranging from between $591.12 and $3,744 for the costs of probation supervision, the
court did not actually order payment of a definitive probation supervision fee. Rather, the
court ordered defendant pay “the costs of probation supervision in an amount to be
determined by the Probation Department.”
We note section Penal Code section 1203.1b, subdivision (c), provides, “[t]he
court may hold additional hearings during the probationary or conditional sentence period
to review the defendant’s financial ability to pay the amount, and in the manner, as set by
the probation officer, or his or her authorized representative, or as set by the court
pursuant to this section.” “At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a judgment has been
rendered may petition the probation officer for a review of the defendant’s financial
ability to pay or the rendering court to modify or vacate its previous judgment on the
grounds of a change of circumstances with regard to the defendant’s ability to pay the
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judgment.” (Pen. Code, § 1203.1b, subd. (f).) Thus, appellate challenge to a probation
supervision fee, which has not even been imposed, is premature. To the extent defendant
does not have the ability to pay the fee, the interests of judicial economy would be better
served if defendant simply challenged any fee imposed if the probation department ever
actually sets the amount of the fee.
However, contrary to People’s contention, the court purportedly ordered, pursuant
to the minute order, imposition of two separate drug program fees in the amounts of $190
and $50 without referring the matter to EDC or itself making an ability to pay
determination. Thus, the matter must be remanded for the court to either strike the drug
program fees or making an ability to pay determination before imposing them.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court with directions
that it strike the drug program fees, make an ability to pay determination and order
imposition of a specific fee commensurate with that determination, or reserve ruling on
the fees for a hearing at a later date.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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