P. v. Her

 

 

 

 

 

 

Filed 9/14/12  P. v.
Her 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)

 

 

 

 

 

 

 
>

THE PEOPLE,             Plaintiff and Respondent,        v.   SENG HER,             Defendant and Appellant.

C068002   (Super. Ct. No. 10F07201)

 

 

 

     A
jury convicted defendant Seng Her of possession
of methamphetamine.  (Health &
Saf. Code, § 11377, subd. (a); count three.) 
The jury deadlocked and a mistrial was declared on counts of inflicting
corporal injury on the parent of his child (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1]
§ 273.5, subd. (a); count one) and battery
resulting in serious bodily injury (§ 243, subd. (d); count two).  The trial court found that the conviction
constituted a probation violation in case No. 08F04890, and that defendant had
suffered a prior serious felony conviction. 
The prosecution dismissed the mistried counts in the href="http://www.fearnotlaw.com/">interest of justice.  Defendant was sentenced to state prison for
seven years, consisting of the upper term of three years, doubled for the prior
strike, plus one year in case No. 08F04890. 
He was awarded 172 days’ custody credit and 172 days’ conduct credit in
this case and an aggregate 124 days’ presentence credit in case No. 08F04890.href="#_ftn2" name="_ftnref2" title="">[2]

     Defendant
was ordered to pay a $200 restitution fine     
(§ 1202.4), a $200 restitution fine suspended unless parole is revoked
(§ 1202.45), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5,
subd. (a)) plus $130 in penalty assessments, a $150 drug program fee (Health
& Saf. Code,        § 11372.7) plus
$130 in penalty assessments, a $40 court security fee (§ 1465.8, subd. (a)(1)),
a $30 court facilities assessment (Gov. Code, § 70373), a $287.78 main jail
booking fee (Gov. Code, § 29550.2), and a $59.23 classification fee (>ibid).

     On
appeal, defendant contends imposition of the booking and classification fees
was reversible error because he was “financially unable to pay . . . .”  We affirm.

FACTS

     In
November 2010, O.T. resided with defendant and his family at the home of
defendant’s brother.  O.T. and defendant
are the parents of a one-year-old child.

     On
November 1, 2010, O.T. went
to a Sacramento hospital
complaining of pain to her collarbone as a result of defendant picking her up
and throwing her to the ground.  Medical
personnel and x-rays established that O.T. had a fractured left clavicle and a
partially healing right clavicle. 

     Sacramento
Police Department officers responded to the hospital and took a statement from
O.T.  Then they proceeded to defendant’s
residence and contacted him in the garage. 
An officer observed an approximately four-inch-long glass smoking pipe
next to defendant.  In his coin pocket,
the officer found a baggie containing .30 grams of methamphetamine.

DISCUSSION

I

     Defendant
contends the jail booking and classification fees must be stricken because the
trial court imposed them without determining his present
ability to pay.  The claim is not
properly before us.

     Under Government Code section 29550.2,
subdivision (a), “Any person booked into a county jail pursuant to any arrest
. . . is subject to a criminal justice administration fee for administration
costs incurred in conjunction with the arresting and booking if the person is
convicted of any criminal offense relating to the arrest and booking.  The fee which the county is entitled to
recover pursuant to this subdivision shall not exceed the actual administrative
costs, as defined in subdivision (c) . . . .  If the
person has the ability to pay, a judgment of conviction shall contain an
order for payment of the amount of the criminal justice administration fee by
the convicted person, and execution shall be issued on the order in the same
manner as a judgment in a civil action . . . .”  (Italics added.)

     Subdivision (c) of the same section defines
“actual administrative costs” as including fees for booking and classification
while in jail.  (Gov. Code, § 29550.2,
subds. (c)(1) & (c)(7).)

     Defendant argues that, since the statute is
predicated on ability to pay and no evidence suggested he had such ability, the
fees were improperly imposed.  The
Attorney General counters that defendant had forfeited the issue by not
objecting to payment of the jail fees in the trial court.

     This court has previously held that, if a
defendant does not object in the trial court to the imposition of a fee or
fine, the issue is forfeited.  (People
v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention
fine—§ 1202.5, subd. (a)]; People v. Hodges (1999)
70 Cal.App.4th 1348, 1357 [jail booking fee—Gov. Code,
§ 29550.2].)  We have applied the
forfeiture rule even when the claim on appeal is that there is not sufficient
evidence to support the imposition of the fine or fee.  (People v. Gibson (1994)
27 Cal.App.4th 1466, 1467, 1468-1469 (Gibson) [restitution
fine—Gov. Code, former § 13967, subd. (a)].)

     However, the Sixth Appellate District has
concluded that appeals challenging the imposition of fines and fees based on
claims of insufficient evidence “do not require assertion in the court below to
be preserved on appeal.”  (People v.
Pacheco (2010) 187 Cal.App.4th 1392, 1397, citing People v. Viray
(2005) 134 Cal.App.4th 1186, 1217.) 
This holding created a conflict between Pacheco and the cases
cited above.  The California Supreme
Court has agreed to resolve the conflict. 
(See People v. McCullough (2011) 193 Cal.App.4th 864, rev. granted on June 29,
2011, S192513.)

     Until the California Supreme Court issues
further guidance, we continue to adhere to our holding in Gibson, i.e.,
that a failure to object to a fee or fine in the trial court forfeits the
issue, even where the statute contemplates a judicial finding of ability to pay
and the defendant challenges the sufficiency of the evidence to support such a
finding.  (Gibson, supra,
27 Cal.App.4th at pp. 1467, 1468-1469.)  “As a matter of fairness to the trial court,
a defendant should not be permitted to assert for the first time on appeal a
procedural defect in imposition of a restitution fine, i.e., the trial court’s
alleged failure to consider defendant’s ability to pay the fine.  [Citation.] 
Rather, a defendant must make a timely objection in the trial court in
order to give that court an opportunity to correct the error; failure to object
should preclude reversal of the order on appeal.”  (Id. at p. 1468.)  Not applying forfeiture principles in such
cases not only encourages attorney gamesmanship, but depletes judicial
resources and wastes taxpayer money. 
(See Gibson, at pp. 1468-1469.)

     Accordingly, we conclude that defendant’s
failure to raise the issue of his ability to pay the main jail classification
and booking fees in the trial court precludes review for the first time on
appeal.

 

 

II

     Anticipating our conclusion, defendant
claims his trial counsel’s failure to object to the booking and classification
fees constitutes ineffective assistance. 
We disagree.

     “‘“[I]n
order to demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was ‘deficient’ because his ‘representation fell
below an objective standard of reasonableness . . . under prevailing
professional norms.’  [Citation.]  Second, he must also show prejudice flowing
from counsel’s performance or lack thereof. 
[Citation.]  Prejudice is shown
when there is a ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’  [Citations.]” 
[Citation.]’”  (>People v. Avena (1996) 13
Cal.4th 394, 418; fn. omitted.)

     “‘“[If]
the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’  [Citations.] 
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding. 
[Citations.]”  (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v. Lucero (2000) 23 Cal.4th 692, 728-729.)

     In
this case defendant’s trial counsel was not asked for, and did not provide, any
explanation for his failure to object to the fees.  Defendant claims “the evidence in the record
supports the fact that [he] did not have the ability to pay,” thus, “[t]here is
no rational excuse” for the failure to object. 
In his view, the fees should be stricken or the fee portion of the
sentence reversed and remanded to the trial court.

     The
Attorney General counters that (1) the trial court impliedly found that
defendant had the ability to pay, (2) the implied finding is supported by the
record, and (3) any deficient performance by defendant’s trial counsel could
not have been prejudicial.  The Attorney
General has the better argument.

     At
a pretrial hearing on reduction of bail, trial counsel represented that
defendant “has a significant heart problem and does not feel he can get the
treatment that he needs for his heart condition if he’s in custody.  Specifically he’s looking to get a heart
transplant.  [¶]  He’s [sic]
doesn’t have a job.  He’s disabled
because of the heart issue.”

     The
prosecutor countered that she was “skeptical of his heart situation given the
fact that he’s on methamphetamine and has methamphetamine in his pocket when
he’s contacted by police in this case.” 
The prosecutor evidently reasoned that defendant’s use of methamphetamine
could seriously aggravate his claimed heart condition; thus, the use implied
that the condition did not exist.  The
bail reduction motion was denied.

     At
trial, O.T. testified that defendant had “[c]ongestive heart failure.”  Defendant’s trial counsel represented that he
had a “congenital heart defect . . . .” 
The arresting police officer testified that, after defendant disclosed
his heart condition, his blood pressure measured high at the jail so he was taken
to a hospital that nevertheless cleared him to be housed in jail.  No medical records were introduced to
substantiate the claimed heart condition.

     Defendant
told the probation officer that he suffers from congestive heart failure, he
takes medication for the heart condition, and he is seeking supplemental
security income due to his condition.

     The
credibility of defendant’s statements to the probation officer is doubtful for
several reasons: first, he could not remember the name of his claimed
medication; second, he denied “consuming alcohol or taking any type of drugs”
even though his conviction is for possessing methamphetamine; third, his heart
condition evidently did not prevent him from (1) performing “work project”
during his probation, (2) lifting his girlfriend and throwing her onto the
ground, or (3) receiving medical clearance for the jail; and fourth, as the
prosecutor noted at the bail hearing, the claimed condition did not dissuade
defendant from using methamphetamine.

     The
probation report showed that defendant was 27 years old, had dropped out of
school in the 10th grade, and had no work history.  Despite the lack of employment, he managed to
obtain unknown quantities of methamphetamine and to pay $210 to the Department
of Revenue Recovery.

     Under
all of these circumstances, the trial court was entitled to infer that
defendant’s lack of employment history “was not due to functional causes but
was the product of defendant’s choice of lifestyle.”  (People
v. Staley (1992) 10 Cal.App.4th 782, 786.) 
Even with his chosen lifestyle, defendant had made a substantial payment
towards his financial obligations and no evidence negated the possibility of
future payments.  Thus, the record
supports an implied finding that defendant had the ability to pay.  (Ibid.)

     Defendant’s
trial counsel could have believed that, especially in light of defendant’s
payment history, an objection to the jail fees would be unsuccessful.  Thus, there could have been a satisfactory
explanation for the failure to object to the fees.  Defendant must pursue his ineffective
assistance claim in habeas corpus
proceedings.  (People v. Mendoza
Tello, supra, 15 Cal.4th at pp. 266-267.)

DISPOSITION

     The judgment is
affirmed.

 

                               BLEASE           , Acting P. J.

 

We concur:

 

              MAURO             , J.

 

 

 

              DUARTE            , J.