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P. v. Snow

P. v. Snow
01:25:2014






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P. v. Snow

 

 

 

 

Filed 8/26/13  P. v. Snow 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Butte)

----

 

 
>






THE PEOPLE,

 

                        Plaintiff and Respondent,

 

            v.

 

KEVIN PATRICK SNOW,

 

                        Defendant and Appellant.

 


C068833

 

(Super. Ct. No.
CM031239)

 

 


 

 

 

            Defendant
Kevin Patrick Snow entered a negotiated plea of no contest to three counts of href="http://www.fearnotlaw.com/">theft by false pretenses (Pen. Code,
§§ 487, subd. (a), 532, subd. (a)) and one count of engaging in business
without a license, a misdemeanor (Bus. & Prof. Code, § 7028) in
exchange for dismissal of a white-collar crime allegation (Pen. Code,
§ 186.11).  The court granted probation
for a term of five years subject to certain terms and conditions including 120
days in jail. 

            Defendant
appeals.  His request for a href="http://www.mcmillanlaw.com/">certificate of probable cause (Pen.
Code, § 1237.5) was denied.  He contends
that insufficient evidence supports
his ability to pay the $736 presentence investigation report fee and the $164
per month probation supervision fee.  We
conclude that defendant forfeited this contention by failing to object to the
imposition of these fees in the trial court.

            The
probation officer recommended that defendant pay, among other fees, fines and
restitution, $736 for the presentence investigation report and $164 per month
for probation supervision.  The probation
officer opined that defendant was “able-bodied with marketable job skills, and
therefore, he should have the ability to pay all fines, fees, and restitution,
as ordered by the Court.” 

            In a
written statement of probation eligibility and mitigation, defendant sought a
grant of probation, stating that he was willing to pay restitution, had set
aside several thousand dollars to do so, and had the ability to comply with the
terms and conditions of probation.  He
stated that he had always been the provider for his family.  He did not state that he had no ability to
pay fees or fines. 

            In a
supplemental report, the probation officer reiterated the recommendations for
fees, fines and restitution.  The
probation officer noted a change in that defendant had reported that he had
spent the money he had saved for payment of victim restitution. 

            At
sentencing, the court indicated that it had read the probation report and was
prepared to follow the probation officer’s recommendations.  Defense counsel agreed with the probation
officer’s recommendations other than the 120 days in county jail which counsel
claimed was “not appropriate for [defendant].” 
Defense counsel represented both defendant and his brother, George Snow,
who was sentenced on the same date. 
Defense counsel stated that “[t]hey are prepared to pay $5,000 toward
restitution” immediately and “[t]hey would commit to an O/R order at $1,000 a
month of continual payment to court compliance in addition to the [$]5,000
today.”  Defense counsel stated that
defendant was employed.  Defense counsel
did not state that defendant did not have the ability to pay the recommended
fees and fines. 

            The court
suspended imposition of sentence, granted probation for a term of five years,
and imposed restitution, fines, and fees, including the presentence
investigation report fee and the monthly supervision fee.  Defense counsel did not object. 

            Defendant
claims that the issue of the sufficiency of the evidence to support his ability
to pay the report and supervision fees is not forfeited, citing >People v. Pacheco (2010)
187 Cal.App.4th 1392 (Pacheco).  Defendant also cites Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11 at page 23,
footnote 17, which sets forth the general rule that a claim of href="http://www.mcmillanlaw.com/">insufficient evidence supports a
judgment is not forfeited by failure to raise the issue in the trial court.

            >Pacheco struck a probation supervision
fee where there was “no evidence in the record that anyone . . . made
a determination of [the defendant’s] ability to pay the $64 per month probation
supervision fee” and where “the statutory procedure provided at [Penal Code]
section 1203.1b for a determination of [the defendant’s] ability to pay
probation related costs was not followed.” 
(Pacheco, supra, 187 Cal.App.4th
at p. 1401.)  Pacheco held that the defendant’s challenge to the sufficiency of
the evidence supporting the probation supervision fee was not forfeited on
appeal by his failure to assert the same in the trial court .  (Id. at
p. 1397.)

            >People v. McCullough (2013)
56 Cal.4th 589 at page 599 (McCullough)> disapproved Pacheco>McCullough held that the defendant
forfeited his challenge to the sufficiency of the evidence supporting the
finding that he had the ability to pay a jail booking fee by failing to object
in the trial court.  (>Id. at pp. 591, 598.)  “Defendant may not ‘transform . . .
a factual claim into a legal one by asserting the record’s deficiency as a
legal error.’  [Citation.]  By ‘failing to object on the basis of his
[ability] to pay,’ defendant forfeits both his claim of factual error and the
dependent claim challenging ‘the adequacy of the record on that point.’  [Citations.]” 
(Id. at p. 597.)  “[A] defendant who does nothing to put at
issue the propriety of imposition of a booking fee forfeits the right to
challenge the sufficiency of the evidence to support imposition of the booking
fee on appeal, in the same way that a defendant who goes to trial forfeits his
challenge to the propriety of venue by not timely challenging it.”  (Id.
at p. 598.)

            Here,
defendant had adequate notice that the costs of the report and supervision
would be imposed but objected to neither in writing or orally and never
requested a hearing.  He now contends
insufficient evidence supports a finding of his ability to pay the report and
supervision fees.  Based on the reasoning
of McCullough, we conclude that
defendant forfeited his challenge to the cost of the probation report ($736)
and monthly supervision ($164 per month for 60 months) imposed pursuant to
Penal Code section 1203.1b. 

Disposition

            The
judgment is affirmed.

 

 

 

                                                                                              HULL                           ,
Acting P.  J.

 

 

 

We concur:

 

 

 

          BUTZ                            ,
J.

 

 

 

          MAURO                       ,
J.

 







Description Defendant Kevin Patrick Snow entered a negotiated plea of no contest to three counts of theft by false pretenses (Pen. Code, §§ 487, subd. (a), 532, subd. (a)) and one count of engaging in business without a license, a misdemeanor (Bus. & Prof. Code, § 7028) in exchange for dismissal of a white-collar crime allegation (Pen. Code, § 186.11). The court granted probation for a term of five years subject to certain terms and conditions including 120 days in jail.
Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was denied. He contends that insufficient evidence supports his ability to pay the $736 presentence investigation report fee and the $164 per month probation supervision fee. We conclude that defendant forfeited this contention by failing to object to the imposition of these fees in the trial court.
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