P. v. Fernandez

Filed 11/26/07 P. v. Fernandez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

Neil D. Chhabra, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Juan Nava Fernandez, was granted probation following his convictions for transportation of methamphetamine (Health & Saf. Code,  11379. subd. (a)) and two misdemeanor Vehicle Code violations. At sentencing, the court ordered appellant to pay $401 for the cost of preparation of the presentence report and $40 per month in probation supervision fees. However, the probation officer had not made a determination of the ability of the defendant to pay all or a portion of the reasonable cost of probation supervision and the preparation of the report as required by Penal Code section 1203.1b, subdivision (a). Appellant was also not advised of his statutory right to a hearing on his ability to pay and the payment amount. (Pen. Code,  1203.1b, subd. (a).)

Appellant argues the trial court erred in ordering him to make these probation-related payments without first inquiring into his ability to pay. Thus, appellant contends, the order to pay these costs must be stricken.

Appellant is correct that these requirements imposed by Penal Code section 1203.1b were not met. Nevertheless, appellant did not object to the probation-related fees in the trial court. The failure to object to statutory error in the imposition of a probation fee under Penal Code section 1203.1b in the trial court waives the matter for purposes of appeal. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.)

As appellant points out, Penal Code section 1203.1b, subdivision (a), provides that 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. Nevertheless, if the defendant receives notice of the fee amount in the probation report, the failure to object in the trial court waives the issue on appeal. (People v. Valtakis, supra, 105 Cal.App.4th at pp. 1075-1076.)

Here, contrary to appellants position, such notice was contained in the probation report. The report originally recommended a prison term. However, an addendum to the probation report recommended placing appellant on probation and ordering him to pay $401 for the cost of the preparation of the presentence investigation report and $40 per month for supervision costs, the same amounts ordered by the trial court. Accordingly, appellants failure to object to the fee below has waived the claim on appeal.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J.; Wiseman, J.; and Levy, J.