P. v. Robinson

 

 

 

 

 

 

 

 

Filed 7/1/13  P. v. Robinson 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NOT TO BE PUBLISHED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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(Trinity)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   RACHAEL-ANNE PEARL ROBINSON,                           Defendant and Appellant.

C071476   (Super. Ct. No. 11F009A)

 

 

            Defendant Rachael-Anne Pearl Robinson pled no contest to
assault by means of force likely to produce great bodily injury.  The trial court suspended the imposition of
sentence, placed her on three years’ probation, and ordered her to pay various
fees.  On appeal, she contends that the
trial court improperly ordered her to pay certain fees because:  (1) “the court failed to state a statutory basis
for all the fees”; (2) there was insufficient
evidence in the record to support the amount of some of the fees;
(3) insufficient evidence supported her ability to pay certain fees,
including attorney fees; and (4) an installment account fee was
unauthorized.  Defendant also argues that
if she forfeited the right to challenge the sufficiency of the evidence
supporting the amount of certain fees or her ability to pay certain fees, she
was denied effective assistance of counsel. 


            First, we conclude that the trial court erred in failing
to include in its probation order specific statutory references for certain
fees.  Second, we conclude that
defendant’s challenge to the sufficiency of the evidence as to the amount of
certain fees is inappropriate because those fees did not need to be supported
by specific evidence.  Third, we conclude
that the trial court has not yet ordered defendant to pay attorney fees.  Fourth, we conclude that there was
insufficient evidence to support the trial court’s finding of defendant’s
ability to pay certain other fees, so those fees must be stricken.  Last, although the trial court may have
exceeded its statutory authority in imposing both a time to pay and an
installment account fee, because we will remand so that the trial court may
include in the probation order specific statutory references for every fee
imposed, the trial court can determine whether it had the authority to impose
those fees as it did.

FACTUAL AND PROCEDURAL BACKGROUND

            The facts of the underlying offense are irrelevant.  Suffice it to say that in March 2011,
defendant was charged with assault and other offenses.  In July 2011, she pled no contest to the
assault charge in return for dismissal of the other charges and grant of
probation.  After accepting the plea, the
trial court “referred [the matter] to probation for a report and
recommendation.”  The probation report
recommended the following fees:

            “1.       The cost of pre-sentence investigation
and pre-sentence report, $350.00 to the Probation Department.

            “2.       The reasonable value of public defender’s
service, $TBD.

            “3.       The cost of incarceration in the county
jail at $20.00 per day.

            “4.       The total of pre-sentence costs and
public defender services ($TBD) in installments of not less than $50.00
per month, commencing 60 days after release from incarceration.

            “5.       An additional $35.00 per month for
the cost of probation supervision to the Probation Department.

            “6.       Shall pay, to the Probation Department, a
$50.00 time to pay fee pursuant to Section 1203.1b(h) of the California Penal
Code.

            “7.       Shall pay, to the Trinity County
Probation Department Collections Division a $35.00 installment account fee.”

            In June 2012, the trial court conducted a href="http://www.mcmillanlaw.com/">sentencing hearing where the court found
“that the defendant has the ability to reimburse the county for the fines and
fees, and . . . imposed [those fees] as recommended [by the probation
report].”  The following colloquy ensued:

            “[THE COURT:]  And,
Mr. Dippery [defense counsel], did you go over the terms and conditions with
your client? 

            “MR. DIPPERY:  I
have not.  I don’t know if she has.  She has reviewed them.

            “THE COURT:  I’m
going to go over these with you for the record, Ms. Robinson.  Besides the fines and fees that have been
imposed -- recommended by probation and adopted by the court . . . .” 

            The court proceeded to explain that she would be subject
to warrantless searches for weapons, paraphernalia, and controlled substances.  Also, the court ordered her to enroll in a
drug rehabilitation program, which she already appeared to have completed.  The discussion then proceeded as follows:

            “[THE COURT:]  How
much time did you have Mr. Dippery?

            “MR: DIPPERY:  It’s
approximately 30 hours, but I don’t believe that Ms. Robinson has any ability
to pay.  She’s unemployed, will be going
to school for the next several years, and I don’t believe she has any resources
to pay for attorneys [sic] fees.

            “THE COURT:  Any
comments from probation on ability to pay?

            “MR. DUONG [probation officer]:  Your Honor, she’s going to have to go to
collection and work with them on the payment plan.  I know there is no ability to pay, but I
think collections should handle that.

            “THE COURT:  I’m
going to indicate 30 hours and refer this matter to probation for a
determination of ability to reimburse the county for attorney’s fees and I’ll
reserve jurisdiction on that issue.” 

            The trial court issued a written probation order.  The fees contained in the probation order are
identical to those recommended by the probation report.  Defendant timely appealed. 

DISCUSSION

I

Failure To
Identify Statutory Bases For Fees    

            Defendant contends that the trial court failed to
identify the statutory bases for the following fees:  (1) “the probation report ($350), [(2)]
probation supervision ($35/month), [(3)] attorneys [sic] fees (30 hours), [(4)] jail time ($20/day), [(5)] and an
installment account fee ($35).” 
Combining their forfeiture arguments together, the People contend
defendant forfeited her right to challenge the trial court’s failure to
identify in its probation order the statutory bases for these fees because
defendant did not object on that basis in the trial court.  Defendant argues that she may challenge for
the first time on appeal the trial court’s failure to include in its probation
order specific statutory references for the fees imposed.  Defendant is correct.

            In People v. High
(2004) 119 Cal.App.4th 1192, we made clear our position that trial courts >must include in their judgments the
statutory basis for every fine or fee imposed. 
“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.  All fines and fees must be
set forth in the abstract of judgment.” 
(Id. at p. 1200.)  A probation order is subject to the same
requirements.  (People v. Eddards (2008) 162 Cal.App.4th 712, 718.)  Thus, without exception, a trial court errs
when it fails to include in a probation order the statutory basis for every fee
imposed.

            This court
has held on more than one occasion that to preserve a challenge to a fee or
fine, a defendant must object in the trial court.  (People v. Crittle (2007) 154
Cal.App.4th 368, 371 [crime prevention fine]; People v. Hodges (1999)
70 Cal.App.4th 1348, 1357 [jail booking fee].) 
Even sufficiency of the evidence claims with respect to fees and fines
may be subject to forfeiture.  (People
v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 [restitution fine]; >People v. McCullough (2013) 56 Cal.4th
589, 590 [booking fee].)  However, there
is no published decision from this court directly addressing whether a
defendant may challenge for the first time on appeal a trial court’s failure to
comply with our directives in High and
Eddards.

            Our
decision in Gibson as to the
application of the forfeiture doctrine to fees and fines guides our analysis
here.  In Gibson, we held that a defendant cannot challenge for the first
time on appeal the trial court’s failure to consider the defendant’s ability to
pay a restitution fine.  (>People v. Gibson, supra, 27 Cal.App.4th at p. 1468.) 
“[B]ecause the appropriateness of a restitution fine is fact-specific,
as a matter of fairness to the People, a defendant should not be permitted to
contest for the first time on appeal the sufficiency of the record to support
his ability to pay the fine.  Otherwise,
the People would be deprived of the opportunity to cure the defect by
presenting additional information to the trial court to support a finding that
defendant has the ability to pay. 
[Citations.] . . .  [¶]  Equally important, the need for orderly and
efficient administration of the law -- i.e., considerations of judicial economy
-- demand that defendant’s failure to object in the trial court to imposition
of the restitution fine should preclude him from contesting the fine on
appeal.  [Citations.]  Defendants routinely challenge on appeal
restitution fines to which they made no objection in the sentencing court.  In virtually every case, the probation report
put the defendant on notice that a restitution fine would be imposed.  Requiring the defendant to object to the fine
in the sentencing court if he or she believes it is invalid places no undue
burden on the defendant and ensures that the sentencing court will have an
opportunity to correct any mistake that might exist, thereby obviating the need
for an appeal.”  (Id. at pp. 1468-1469.) 

            Our concerns
in Gibson over fairness to the trial
court and the People are clearly absent when applied to the particular
circumstances involved in defendant’s challenge to the trial court’s failure to
include in a probation order a specific statutory reference for a fee.  The requirement from our decisions in >High and Eddards is that the trial
court include in its probation order
the statutory basis for every fee imposed. 
(See People v. High, >supra, 119 Cal.App.4th at p. 1200; >People v. Eddards, supra, 162 Cal.App.4th at p. 718.)  Because there is no evidence that defendant
here was provided with the trial court’s probation order before sentencing, we cannot say that defendant could have objected
to the trial court’s failure to comply with High
and Eddards.  Thus, unlike Gibson, defendant would be unduly burdened by the application of
the forfeiture doctrine here because she did not have notice that there was any
problem in the trial court’s probation order, i.e., she did not know before
sentencing that the probation order would not include statutory references for
every fee imposed.  (Cf. >People v. Gibson, supra, 27 Cal.App.4th at p. 1468.)

            Citing our
Supreme Court’s decision in People v.
Scott (1994) 9 Cal.4th 331, 353 the People argue that “[g]enerally,
sentencing determinations are not
reviewable on appeal.”  They therefore
suggest that because “claims that fines were improperly imposed are forfeited
if not raised below” defendant’s challenge here should be forfeited just as is
trial counsel’s failure to object to the defendant’s ability to pay attorney
fees.

            We find the People’s reliance on Scott unpersuasive in this particular case.  In Scott,
our Supreme Court held “that the [forfeiture] doctrine should apply to
claims involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices.”  (>People v. Scott, supra, 9 Cal. 4th at p. 353.) 
“Routine defects in the court’s statement of reasons are easily
prevented and corrected if called to the court’s attention. As in other
[forfeiture] cases, we hope to reduce the number of errors committed in the
first instance and preserve the judicial resources otherwise used to correct
them.”  (Ibid.)  Here, however, the
defendant’s counsel could not have brought the error to the trial court’s
attention because trial counsel could not be charged with knowing of, and
bringing to the trial court’s attention, an error the trial court had yet to
make.  (See People v. Gibson, supra,
27 Cal.App.4th at p. 1468 [“The purpose of the [forfeiture] doctrine is to
bring errors to the attention of the trial court so they may be corrected or
avoided”]; People v. Welch (1993) 5
Cal.4th 228, 236 [“[forfeiture] principles encourage development of the record
and a proper exercise of discretion in the trial court”] .)  Thus, Scott
does not justify forfeiting defendant’s claim that the trial court failed to
include in its probation order specific statutory references for every fee
imposed.

            Next, turning to the substance of defendant’s argument,
we agree that the trial court erred in failing to include in the probation order
the statutory basis for the fees mentioned above.  (See People
v. Eddards, supra, 162
Cal.App.4th at p. 718).  We, therefore,
remand to the trial court to modify the probation order to include the
statutory basis for every fine and fee.href="#_ftn1" name="_ftnref1" title="">[1]


            Of course, the trial court could have avoided this
portion of our review had it merely included a cite to the statutory source of
each fee.  This is clearly the situation
we envisioned when crafting our holding in High;
the trial court’s failure to specify the code section allows neither us nor the
appropriate department to determine to whom the fees go.  (See People
v. High, supra,119 Cal.App.4th at
p. 1200.) 

            We recognize our trial
courts have burgeoning caseloads. 
Nevertheless, we hope that they will take the few minutes necessary to
ensure they include in their probation orders and abstracts of judgment
specific statutory references for each fee. 
In ensuring that specific statutory references for fees be included in
the abstract of judgment or probation order, we can reduce these sorts of
appeals and ensure a more orderly and efficient administration of our judicial
system.

II

>The Booking, Jail, Time To Pay, And
Installment Account

>Fees Are Not Subject To Court Determination

            Defendant’s
second contention on appeal is that there was href="http://www.fearnotlaw.com/">insufficient evidence to support the
amount of the booking fee, jail cost fee, time-to-pay fee, and the installment
account fee.  She argues that because
there was no evidence in the record that the fees comported with the statutory
limits, there is insufficient evidence to support the amount of the challenged
fees.  The People counter that these
issues are forfeited on appeal because trial counsel failed to object.  Defendant argues that they were not
forfeited, and if they were, the failure to object and preserve the issues
amounted to ineffective assistance of counsel. 
As we will explain, we do not reach the merit of defendant’s claim
because we find no requirement that evidence be presented to support the amount
of the fees.

            Defendant points to various code sections to identify the
source of fees.  Defendant points to
Penal Code section 1203.1c, subdivision (a), for the purported jail cost
fee.  For the installment account fee and
time-to-pay fee, defendant points to Penal Code section 1203.1b, subdivision
(h).  Last, for the booking fee,
defendant points to Government Code section 29550.2. 

            In each instance, the href="http://www.mcmillanlaw.com/">legislative scheme contemplates that the
amount of the fee will be determined by a legislative body, rather than by an
evidentiary showing before a trial court. 
With respect to the jail cost fee, Penal Code section 1203.1c,
subdivision (a) explicitly limits the fees to “[t]he reasonable cost of such
incarceration . . . not exceed[ing] the amount determined by the board of supervisors, with respect to the county
jail, and by the city council, with
respect to the city jail, to be the actual average cost thereof on a per-day
basis.”  (Italics added.)  With respect to the installment account fee
and time-to-pay fee, Penal Code section 1203.1b, subdivision (h),  allows “[t]he
board of supervisors in any county, by
resolution . . . [to] establish a
fee for the processing of payments made in installments to the probation
department.”  (Italics added.) 

            With respect to the booking fee, it is true that
Government Code section 29550.2, subdivision (a) mandates that booking fees
reflect “the actual administrative costs” and does not express that a
particular body must determine the amount. 
However, because the measure of the fee amount is the “actual
administrative costs,” this is likely determined by the administrative
personnel at a particular secure facility. 
After the personnel make this determination, the amount is likely
forwarded to the probation department, or to a county or city administrative
body.  Thus, just like the code sections
above, an extrajudicial body determines the amount of the fee.  At least there is certainly nothing in the
statutory scheme that suggests the trial court must make this determination on
a case-by-case basis.

            Accordingly, in making the determination of these fee
amounts a legislative prerogative, the statutory framework by default has
eliminated appellate review as to the sufficiency of the evidentiary basis
supporting the amounts of these fees.  As
detailed above, the statutory framework has made determining the amount of the
fees challenged here legislative determinations.  When reviewing the sufficiency of evidence, a
court must determine whether there existed substantial evidence, “ ‘ “that is,
evidence that is reasonable, credible, and of solid value.” ’ ”  (People
v. Racy (2007) 148 Cal.App.4th 1327, 1332; see Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1052-1053
[questions of fact reviewed under substantial evidence standard].)  Given that under the statutory framework the
amounts of the fees challenged here are not set by the trial court, no evidence
to support these fees is presented to the trial court.  Because no evidence is presented to the trial
court to set these fee amounts, no evidence can be weighed as
“ â€˜ â€œreasonable, credible, [or] of solid value” ’ ” upon review.   (Racy,
at p. 1332.)  Thus, we conclude that
a challenge to the sufficiency of the evidence to support the amount of these
fees is inappropriate here.

III

Defendant’s
Ability To Pay Attorney, Booking, Jail, And Probation Fees

            Defendant contends there is insufficient evidence in the
record to support her ability to pay the attorney fees, booking fee, jail fee,
and probation fee.  The People claim that
defendant forfeited her right to challenge those fees by failing to object
during the sentencing hearing.  Defendant
argues that she did not forfeit challenging her ability to pay those fees, and
if she did, the failure of trial counsel to object was ineffective assistance
of counsel.  We find that defendant
properly objected below.  On the merits
of defendant’s challenge to the sufficiency of the evidence with respect to
attorney fees, we find that the trial court has not yet ordered defendant to
pay attorney fees.  However, with respect
to the booking, jail, and probation fees, we find those unsupported by the
evidence of ability to pay.  Accordingly,
we order the booking, jail, and probation fees stricken.

A

Defendant
Properly Objected To Her Ability To Pay Fees

            As noted above, the trial court read defendant the
conditions of her probation and informed her that she would pay fees.  After asking defense counsel for the time he
had in the case, defense counsel responded that “I don’t believe that Ms.
Robinson has any ability to pay.  She’s unemployed, will be going to school for
the next several years, and I don’t believe she has any resources to pay for
attorneys [sic] fees.”  (Italics added.)  The probation officer concurred.  While the objection may have come most
immediately in a discussion of attorney fees, it was within a part of a broader
conversation that included the imposition of all the fees.  When read in the context of the entire
colloquy, we find this objection was sufficient to apprise the trial court that
defendant contended that she had an inability to pay all fees.  (See People
v. Scott (1978) 21 Cal.3d 284, 290 [“An objection is sufficient if it
fairly apprises the trial court of the issue it is being called upon to
decide”].)

B

The Trial
Court Reserved Jurisdiction On Defendant’s Ability To Pay Attorney Fees

            Defendant contends that there was insufficient evidence
to support her ability to pay attorney fees. 
The People do not contest this issue, relying instead solely on their
assertion of forfeiture, which we have rejected already.  Nevertheless, we need not decide this issue
because the trial court reserved jurisdiction on defendant’s ability to pay
attorney fees and never issued an order for her to do so.

            Penal Code section 987.8, subdivision (b) provides for
attorney fees upon conclusion of criminal
proceedings when a defendant is either represented by a public defender or
privately appointed counsel.  “[T]he
court may, after notice and a hearing, make a determination of the present
ability of the defendant to pay all or a portion of the cost thereof.”  (Ibid.)  However, a trial court may also “in its
discretion, order the defendant to appear before a county officer designated by
the court to make an inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided.” 
(Ibid.)

            Here, the trial court stated that it was going “to
indicate 30 hours and refer this matter to probation for a determination of
ability to reimburse the county for attorneys [sic] fees.  And I’ll reserve
jurisdiction on that issue.”  The court
properly acted within its discretion in forwarding the determination of defendant’s
ability to pay to the probation department. 
(See Pen. Code, § 987.8, subd. (b).) 
Because the trial court has not yet ordered defendant to pay >any attorney fees, it is premature for
defendant to challenge a determination of ability to pay that has not been made
yet (and may never be made). 

C

There Is
Insufficient Evidence To Support Defendant’s

Ability To
Pay The Booking, Jail, And Probation Fees

            Defendant contends there is insufficient evidentiary
support for her ability to pay the booking, jail, and probation fees.  Again, the People do not contest this,
instead relying on their claim of forfeiture. We agree with defendant.

            “The court’s finding of the defendant’s present ability
to pay need not be express, but may be implied through the content and conduct
of the hearings.  [Citation.]  But any finding of ability to pay must be
supported by substantial evidence.”  (>People v. Pacheco (2010) 187 Cal.App.4th
1392, 1398.)  Substantial evidence is “ ‘
“evidence that is reasonable, credible, and of solid value.” ’ ”  (People
v. Racy, supra, 148 Cal.App.4th
at p. 1332.) 

            Determining the ability to pay requires the trial court
to consider the defendant’s present and reasonably discernible future financial
position, the likelihood that defendant will be able to obtain future
employment, and any other factors that are relevant in determining the
defendant’s ability to pay.  (See Pen.
Code, §§ 1203.1b, subd. (e)(1)­-(4); 1203.1c., subd. (b)(1)­-(4).)  

            Here, none of the fees the court ordered were supported
by substantial evidence that defendant could pay.  After the trial court made a conclusory
statement that “the defendant has the ability to reimburse the county for the
fines and fees,” both defense counsel and
the probation’s officer stated that defendant had no ability to pay.  No evidence suggested that she had any
present ability to pay, nor that she would any time in the near future.  In fact, everyone but the trial court agreed
she was unable to pay.  Thus, there was no evidence to support an express
or implied finding that defendant possessed any ability to pay the booking,
jail, and probation fees.  (See >People v. Racy, supra, 148 Cal.App.4th at p. 1332.) 
Because there is insufficient evidence to support defendant’s ability to
pay these particular fees, we order them stricken.

IV

The Trial Court
May Have Exceeded Its Authority In Imposing

Both A $50
Time-To-Pay Fee And An Installment Account Fee

            Defendant argues that the trial court erred in
calculating the installment account fee. 
She argues Penal Code section 1203.1b, subdivision (h) is the source of
both the time-to-pay fee and the installment account fee.  The time-to-pay fee imposed was $50 and the
installment account fee was $35.  Because
Penal Code section 1203.1b, subdivision (h), only authorizes up to $75 for an
installment account fee, and the aggregate of the two fees imposed here is $85,
she argues the trial court exceeded the limit by $10. 

            The People argue that the $35 installment account fee
imposed here was independently justified by Penal Code section 1205,
subdivision (e).  Because that section
allows for a $30 installment account fee, the People contend that the total
amount permitted for the two fees was exceeded by only $5.  (In short, the People and defendant argue
over $5.)  Defendant counters that this
section is inapplicable here.  While we
agree with defendant, we find it appropriate to remand to the trial court to
sort out whether it can impose the fees it did.

            The code section the People cite for the installment account
fee applies only to installment account fees with respect to fines.  Penal Code section 1205, subdivision (a),
provides that “[a] judgment that the defendant
pay a fine, with or without other punishment, may also direct that he or
she be imprisoned until the fine is satisfied and may further direct that the
imprisonment begin at and continue after the expiration of any imprisonment
imposed as a part of the punishment or of any other imprisonment to which the
defendant may have been sentenced.” 
(Italics added.)  Later, Penal
Code section 1205, subdivision (e) mandates “[t]he defendant shall pay to the
clerk of the court or the collecting agency the fee established for the
processing of installment accounts.” 
Because no fine was imposed here, the People cannot use Penal Code
section 1205 as an independent justification for the installment account fee.

            Under these circumstances, the trial court may have
exceeded its authority in imposing $85 in the aggregate for a time-to-pay fee
and an installment account fee.  Penal
Code section 1203.1b, subdivision (a) provides in relevant part that “a
defendant [who] is convicted of an offense and is the subject of any preplea or
presentence investigation and report . . . [may be instructed to] pay all or a
portion of the reasonable cost of any probation supervision or a conditional
sentence, [or] of conducting any preplea investigation and preparing any
preplea report.”  Penal Code section 1203>.1b, subdivision (h) provides that “[a]
board of supervisors in any county, by resolution, may establish a fee for the
processing of payments made in installments to the probation department
pursuant to this section . . . except that the fee shall not exceed
seventy-five dollars ($75).”

            Given that there does not appear to be any authority for
the court to impose both a time-to-pay fee and an installment account fee, at
least where those two fees exceed the statutory maximum of $75 in Penal Code
section 1203.1b, subdivision (h), we agree that the trial court may have
exceeded its statutory authority by imposing the two fees aggregated at
$85. 

            However, we will not order the fees stricken or
reduced.  Because we are remanding to the
trial court to include in the probation order specific statutory references for
certain fees, the trial court can determine whether it had the statutory
authority to impose the fees challenged here. 
If the trial court determines it does have statutory authority to impose
the fees, it must include in the probation order specific statutory references for the fees.  Should it determine that it did not have the
statutory authority to impose the fees it did, then we trust that the trial
court will appropriately reduce the fee amount to $75 in the aggregate.  Again, we note that this portion of our
review could have been avoided had the trial court taken the few minutes
necessary to include in its probation order specific statutory references for
the fees.

DISPOSITION

            Defendant’s conviction is affirmed, but we remand the
case to the trial court with instructions to strike the booking, jail, and
probation fees, to reconsider its imposition of both a time-to-pay fee and an
installment account fee, and to modify the probation order to include specific
statutory references to each and every fee and fine imposed.

 

 

 

                                                                       ROBIE          , Acting P. J.

                                                                    

 

 

We concur:

 

 

 

          MAURO          , J.

 

 

 

          DUARTE         , J.