P. v. Harder
Filed 6/21/13 P. v. Harder 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Yolo)
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>
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN EUGENE HARDER, Defendant and Appellant. | C070967 (Super. Ct. No. CRF10002646) |
Convicted
of workers’ compensation fraud, defendant Stephen Eugene Harder appeals,
claiming various errors with respect to the fees, fines, and costs the trial
court imposed in granting him probation.
In the event we find these claims of error forfeited for failure to
raise them in the trial court, defendant contends his trial attorney was
ineffective in failing to make these arguments.
We conclude defendant’s trial
attorney was not ineffective, but we order the trial court to impose the $1,500
penalty assessment and the $35 processing fee as separate orders and
probation as the trial court did here.
Otherwise, we find no error.
FACTUAL
AND PROCEDURAL BACKGROUND
A jury
found defendant guilty of five counts of workers’ compensation fraud. (Ins. Code, § 1871.4.) The trial court suspended imposition of
sentence and placed him on five years’ probation subject to various terms and
conditions set forth in a three-page written probation order. At the sentencing hearing, the trial court
gave the probation order to defendant to sign, along with another document that
purportedly “explain[ed] how [the court] calculated the fines and fees that
[we]re included in the conditions of probation.†The court noted that it would “deal with
other issues related to the trial†“[o]nce the defendant signs the probation
order†and subsequently noted that defendant had “signed the order of probation
in open court giving his consent to [the] terms of probation.†Defendant signed the probation order
immediately under a line that read, “I hereby certify that I understand the
terms and conditions of my probation as set forth in this order.â€
As relevant
here, the probation order provides as follows:
“
“[¶] . . .
[¶]
“7. Pay $500 as a fine[
plus $1,500 penalty assessment; plus a processing fee of $35.
“8. (a)
Pay
$120 as a restitution fine for each misdemeanor case to the State Restitution
Fund pursuant to PC § 1202.4(b); plus a processing fee of $20 for each felony
case and a $10 processing fee for each misdemeanor case.[
“[¶] . . .
[¶]
“11. Be confined in the Yolo County Jail for a
period of 150 days with credit for time served of . . . a total of 1 day as of
3/23/12 . . . ; probationer is not eligible for any alternative custody program
if residential treatment is also
ordered . . . ; 90 days jail shall be stayed.[
“[¶] . . . [¶]
“15. Pay restitution
in the sum of $159,801.74 covering losses related to the charge(s) s/he stands
convicted of, or in accordance with the plea agreement; plus interest at the
rate of 10% per annum; plus a collection fee of 10% of the restitution total;
(PC § 1202.4).â€
Immediately
following the three-page probation order in the clerk’s transcript is a
preprinted form that provides in pertinent part as follows:
“CRIMINAL CONVICTION ASSESSMENT
“Defendant is hereby ordered to pay
a court construction fee of $30 for each misdemeanor and/or felony conviction
(Section 70373(a)(1) GC).
“[¶] . . . [¶]
“PROBATION
FEE ORDER
“As provided by law, defendant is
hereby ordered to pay all applicable probation fees that may include preparation
of the pre-plea or pre-sentence report, supervision fee, interstate compact
request fee, jurisdictional transfer fee, GPS fee and electronic monitoring
fee.
“[¶] . . . [¶]
“SENTENCING FEE ORDER
“Defendant
is ordered to pay a sentencing fee if committed to jail as a condition of
probation or if allowed to participate in the Work Alternative Program/Jail
Work Release Program in lieu of jail.
The amount is established in the Yolo County Master Fee Resolution &
may be reduced by Yolo County Collection Services. (Yolo County Board of Supervisors Resolution
#93-78.5.)
“COURT SECURITY FEE ORDER
“Defendant
is hereby ordered to pay a court security fee of $40 per convicted
offense. (PC section 1465.8.)â€
We will
refer to the foregoing as the untitled preprinted form. Following that form is another that
identifies the statutory basis of the penalty assessment (the $1,500) attached
to the $500 fine imposed. (This appears
to be the other document the court mentioned at the hearing as having been
given to defendant.)
Defendant
did not object to any of the fines or fees imposed but filed a timely
DISCUSSION
I
Counsel
On appeal,
all of defendant’s arguments relate to the fines and fees the court imposed as
part of the grant of probation. As a
threshold matter, the People contend defendant forfeited all of his challenges
to the fines and fees because he did not object in the trial court. Defendant contends that because “the court
never made an oral pronouncement of the fees, defense counsel never had any
meaningful opportunity to object.†In
the alternative, defendant contends his trial counsel was ineffective in
failing to object.
From the
record, it appears defendant had an opportunity to object in the trial court to
at least some of the fines and fees the court imposed because the court gave
defendant the three-page probation order to sign at the sentencing hearing, and
defendant signed the form, acknowledging that he understood the terms and
conditions of his probation as set forth in the order. Thus, as to the fines and fees set forth in
the three-page written probation order, defendant’s failure to object to the
order before he signed it resulted in the forfeiture of the challenges he now
seeks to raise to those fines and fees.
(See, e.g., People v. Gibson
(1994) 27 Cal.App.4th 1466, 1468.)
Nevertheless, because defendant contends his attorney was ineffective in
failing to take the opportunity to object, we will have to consider the merits
of defendant’s challenges in addressing his assertion of ineffective
assistance.
As for the
additional fees set forth in the untitled preprinted form (the $30 court
construction fee per conviction, the unspecified probation fees, the
unspecified sentencing fee, and the $40 court security fee per offense), there
is nothing in the record to show that defendant was provided with this form at
or before the sentencing hearing and nothing to show that he was otherwise
advised of the terms contained on this form when he was placed on
probation. Thus, we agree with defendant
that he never had a meaningful opportunity to object to the fees set forth on
this form, and therefore his challenges to those fees (as opposed to those on
the probation order itself) were not forfeited.
As to these fees, we will address the merits of defendant’s arguments
without the filter of his assertion of ineffective assistance.
With this
in mind, we turn to defendant’s arguments.
II
Defendant contends the $240
restitution fine the trial court imposed under Penal Code section 1202.4,
subdivision (b) “may have violated ex post facto principles.â€
amount of the restitution fine in the trial court, this challenge to the fine
was forfeited. Thus, the only question
before us is whether his trial attorney was ineffective in failing to object to
the amount of the fine. We conclude that
he was not.
At the time of defendant’s crimes,
the minimum restitution fine was $200.
Effective January 1, 2012, the minimum was raised to $240. Consistent with this change, the preprinted
probation order the trial court used showed $200 for the amount of the
restitution fine, but that amount was lined out and $240 was written in its
place.
Defendant contends that based on
these facts “it may be reasonably assumed that the court intended to impose the
minimum restitution fine pursuant to Penal Code section 1202.4,
subdivision (b)†and thus the $240 restitution fine the court imposed “would
appear to violate ex post facto principles.â€
He contends his trial counsel was ineffective because he “raised no
objection to [a fine] which violated the ex post facto clause.â€
As defendant’s varying formulations
of his argument show, the $240 restitution fine the court imposed did not
principles. The $240 amount was within
the statutory range that applied to defendant ($200 to $10,000); thus, the
court could have imposed that amount even if defendant’s trial counsel had
raised the issue at the sentencing hearing.
We also do not agree that on this record the court necessarily intended to impose only the minimum applicable
restitution fine and had defense counsel advised the court that the minimum
applicable to defendant was $200, rather than $240, the court likely would have
imposed the lesser amount. The trial
court ordered defendant to pay over $159,000 in restitution and there was
nothing in the record showing that the court had any intention of giving
defendant a break as to the other fines by imposing only the minimum. Moreover, the record is not clear that
counsel had no tactical reason to refrain from objecting. Calling attention to the minimum fine could
have caused the trial court to increase the fine. On this record, defense counsel was not
deficient for failing to object to the imposition of the $240 restitution
fine.
III
Defendant
next contends the trial court erred in ordering the various fees and fines --
except for the restitution fine -- as conditions of probation. Again, because defendant did not raise this
argument in the trial court, this challenge was forfeited, and the only
question before us is whether his trial attorney was ineffective in failing to
object on this basis.
In
902, this court noted that while “orders for restitution and restitution fines
. . . are statutorily required to be included as conditions of probation,†some
other fees and costs cannot be imposed as conditions of probation. (Id.
at p. 907.) Here, defendant asserts it
was error for the trial court to impose the $500 fine, $1,500 penalty
assessment, and $35 processing fee contained in the probation order as
conditions of probation. He further
contends it was error for the trial court to impose the court construction fee,
the court security fee, the sentencing fee, and the probation costs contained
in the untitled preprinted form as conditions of probation, although defendant
asserts that “the record is not clear as to whether these fees and fines were
included as conditions of probation.â€
Dealing
first with the fees and costs contained in the untitled preprinted form,
defendant asserts only that the court erred if
it intended to impose these fees and costs as conditions of probation, but he
cannot show that the court had this intention, nor do we have any reason to
believe that the court did. In the
absence of any reason to believe the court imposed these fees and costs as
conditions of probation, defendant has failed to show that his trial attorney
was ineffective for failing to object to these fees and costs on this basis in
the trial court.
Turning to
the $500 fine, $1,500 penalty assessment, and $35 processing fee contained in
the probation order, the People concede that the penalty assessment and the
processing fee should not have been imposed as conditions of probation because
they are collateral to defendant’s crime and punishment. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 836, 842-843.) They further contend, however, that the $500
fine could be imposed as a condition of probation because it was part of
defendant’s punishment. We agree. As to the remaining assessment and fee, we
accept the People’s concession. But we
do not find counsel deficient for failing to object to the inclusion of the
$1,500 penalty assessment and the $35 processing fee as conditions of probation
because both could have been imposed as separate orders. But because they should be listed as separate
orders and not conditions of probation, we direct the trial court to delete the
$1,500 penalty assessment and the $35 processing fee as conditions of probation
and instead impose them as separate orders.
IV
Relying on
380, defendant contends that with the exception of the victim restitution the
court ordered (which the court mentioned on the record), all of the fees and
fines must be stricken because the court did not orally pronounce them. Defendant is mistaken. In Zackery,
this court discussed “the obligation of a trial court clerk to accurately
record the sentence pronounced by the
judge in a criminal proceeding.†(
defendant was placed on probation. By
definition, probation is “the suspension
of the imposition . . . of a sentence and the order of conditional and
revocable release in the community under the supervision of a probation
officer.â€
added.)
Defendant
points to no authority requiring fees and fines imposed as part of a grant of
probation to be pronounced orally on the record, as opposed to being included
in a written order of probation presented to the defendant at the sentencing
hearing, which is what happened here. In
the absence of such authority, defendant has failed to show any error on this
point.
V
Ability To Pay
Defendant
contends the trial court erred in ordering him to pay a $35 processing fee and
unspecified probation costs without first determining his ability to pay.
The $35 processing fee appeared on
the probation order that defendant signed at the sentencing hearing. Because defendant had the opportunity to
challenge this fee in the trial court but did not do so, his challenge was
forfeited, and the only question before us is whether his trial attorney was
ineffective in failing to object to this fee on this basis. On the appellate record before us, defendant
has not shown that his trial counsel could have had no legitimate reason for
not insisting on a determination of defendant’s ability to pay a
reasonable probability that if his attorney had challenged this fee on this
basis a better result would have followed.
Accordingly, any relief for ineffective assistance relating to this fee
cannot be sought through direct appeal.
(See, e.g., People v. Pope
(1979) 23 Cal.3d 412, 426.)
As for the
unspecified probation costs, the order to pay those costs appeared on the
untitled preprinted form, and because defendant never had a meaningful
opportunity to object to the fees set forth on that form, his challenges to the
probation costs were not forfeited.
Nevertheless, we find no merit in his argument on this point. Defendant acknowledges that the statutory
basis for the probation fees was Penal Code section 1203.1b. That statute provides in pertinent part as
follows:
“(a) [I]n
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 or a
conditional sentence, . . . [and] of conducting any presentence investigation
and preparing any presentence report made pursuant to Section 1203 . . .
. The reasonable cost of these services
and of probation supervision . . . shall not exceed the amount determined to be
the actual average cost thereof. A
payment schedule for the reimbursement of the costs of . . . presentence
investigations based on income shall be developed by the probation department
of each county and approved by the presiding judge of the superior court. The court shall order the defendant to appear
before the probation officer, or his or her authorized representative, to make
an inquiry into the ability of the defendant to pay all or a portion of these
costs. The probation officer, or his or
her authorized representative, shall determine the amount of payment and the
manner in which the payments shall be made to the county, based upon the
defendant’s ability to pay. The
probation officer shall inform the defendant that the defendant is entitled to
a 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.
“(b) When the defendant fails to
waive the right provided in subdivision (a) to a determination by the court of
his or her ability to pay and the payment amount, the probation officer shall
refer the matter to the court for the scheduling of a hearing to determine the
amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay
the reasonable costs if it determines that the defendant has the ability to pay
those costs based on the report of the probation officer, or his or her
authorized representative.â€
Here, the trial court ordered
defendant to “pay all applicable probation fees†“[a]s provided by law.†Unlike defendant, we do not understand this
order to subvert the procedures called for by Penal Code section 1203.1b, set
forth above. Thus, it is for the
probation officer to determine in the first instance defendant’s ability to pay
his probation costs, and defendant is entitled to a court hearing on the
probation officer’s determination of his ability to pay before he is ordered to
pay any particular amount for the costs of his probation. Although the court’s probation fee order
could have been more explicit on this point, understood in this manner we find
no error in it.
VI
Defendant
contends the $500 fine and $1,500 penalty assessment the trial court imposed
“may have been calculated based upon the multiple counts†that, in defendant’s
view, “resulted from a course of conduct incident to a single common
objective.†Accordingly, defendant
“submits that the court may have erred in failing to apply Penal Code section
654 to the . . . penal fine which was imposed.â€
“We must
indulge in every presumption to uphold a judgment, and it is defendant’s burden
on appeal to affirmatively demonstrate error -- it will not be presumed.†(People
v .Garcia (1987) 195 Cal.App.3d 191, 198.)
The assertion that the court may
have erred because it may have failed
to apply Penal Code section 654 does not “affirmatively demonstrate
error.†Accordingly, defendant has not
carried his burden on appeal.
DISPOSITION
Defendant’s
convictions are affirmed, but the order granting probation is reversed with
respect to the $1,500 penalty assessment and the $35
processing fee only. The case is
remanded to the trial court with directions to impose the $1,500 penalty
assessment and the $35 processing fee as separate orders and
probation.
ROBIE , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
name="_ftn1" title="">[1]
The People contend “it is a fair
inference that the court imposed the $500 fine . . . as part of [defendant]’s
punishment†under subdivision (b) of Insurance Code section 1871.4. Defendant does not disagree.
name="_ftn2" title="">[2]
The $200 and $100 amounts were
lined through and the $240 and $120 amounts were written in by hand.
