P. v. Urosevic















Filed 4/2/13 P. v. Urosevic CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. DENI UROSEVIC, Defendant and Appellant.

H037496 (Santa Clara County Super. Ct. No. C1108974)

>I. >INTRODUCTION

Defendant
Deni Urosevic pleaded no contest to grand
theft (Pen. Code, §§ 484, 487, subd. (a))href="#_ftn1" name="_ftnref1" title="">>[1]
and receiving, concealing, or withholding
stolen property (§ 496, subd. (a)).
He also admitted that he had served three prior prison terms
(§ 667.5, subd. (b)). The
trial court sentenced defendant to county jail for two years pursuant to
section 1170, subdivision (h). The court
ordered that 16 months of the two-year term be served in jail and that the
remaining eight months be served under “community supervision” (hereafter, sometimes
mandatory supervision) with various terms and conditions (see § 1170, subd.
(h)(5)(B)). The court also ordered
defendant to pay a monthly supervision fee of $110 pursuant to
section 1203.1b during the eight-month period of supervision, a suspended parole
revocation restitution fine of $800, and a criminal conviction assessment of
$80.

On appeal,
defendant contends that the monthly supervision fee of $110 is unauthorized and
must be stricken and that, even assuming such a fee is statutorily authorized,
there is insufficient evidence to
support a finding of his ability to pay the fee. Defendant also argues that the parole
revocation restitution fine is unauthorized and must be stricken, and that the
criminal conviction assessment must be reduced to $60. Defendant further contends that his appellate
claims have not been forfeited and that, to the extent they have been
forfeited, his counsel rendered ineffective assistance.

For reasons
that we will explain, we conclude that the monthly supervision fee and the
parole revocation restitution fine are unauthorized, and that the href="http://www.fearnotlaw.com/">criminal conviction assessment must be
reduced. We will strike the unauthorized
amounts, reduce the criminal conviction assessment to $60, and affirm the
judgment as so modified.

>II. >FACTUAL AND PROCEDURAL BACKGROUND

Law
enforcement officers conducted a search of defendant’s residence and found an
Apple iPhone.href="#_ftn2" name="_ftnref2"
title="">[2] The iPhone had previously been reported lost
or stolen by the victim in 2011. The
victim last had the phone while at a bar with defendant. Sometime after the iPhone was located,
defendant admitted to taking a laptop computer, which had been reported stolen
by another victim in 2011. Defendant led
law enforcement officers to the location of the computer.

In July
2011, defendant was charged by information with grand theft of a laptop
computer (§§ 484, 487, subd. (a); count 1) and receiving, concealing, or
withholding stolen property (§ 496, subd. (a); count 2). The information further alleged that
defendant had served three prior prison terms (§ 667.5, subd. (b)).

On
September 27, 2011, after count 2 was amended to clarify that the property at
issue was an iPhone, defendant pleaded no contest to both counts and admitted
that he had served three prior prison terms.
Defendant entered his pleas and admissions with the understanding that
he would receive a two year sentence, of which 16 months would be served in
custody in jail and the remaining 8 months would be served under “community
supervision,” and that he would be required to pay a “community supervision”
fee of up to $110 per month.

In a waived
referral memorandum, the probation department recommended the imposition of,
among other amounts, a “Community Supervision Fee” not to exceed $110 per
month pursuant to section 1203.1b.

At the
October 21, 2011 sentencing hearing, defense counsel objected to the “community
supervision fee.” Counsel argued that
defendant’s sentence, which was going to include mandatory supervision under
section 1170, subdivision (h), was “similar to parole rather than
probation.” According to counsel,
defendant “can’t reject the supervision,” and thus it was not “fair” to subject
him to a fee for such supervision. The
trial court stated: “As indicated in
chambers I’m going to overrule the objection.”
The court sentenced defendant to county jail for two years pursuant to
section 1170, subdivision (h). The
sentence consists of the middle term of two years on count 1 and a concurrent
middle term of two years on count 2. The
court struck the punishment for the prison priors pursuant to
section 1385. The court ordered
that 16 months of the two-year term be served in jail and that the remaining
eight months be served under “community supervision” with various terms and
conditions (see § 1170, subd. (h)(5)(B) [authorizing mandatory
supervision]). The court also ordered
defendant to pay a “community supervision fee” of $110 per month pursuant to
section 1203.1b, a suspended parole revocation restitution fine of $800,
and a criminal conviction assessment of $80.

>III. DISCUSSION

A. >Supervision Fee Under Sections 1170,
subdivision (h)(5)(B)(i), and 1203.1b

>1. Background Regarding the Realignment
Legislation

The 2011 Realignment
Legislation (Stats. 2011, ch. 15, § 1), “together with subsequent related
legislation, significantly changed the sentencing and supervision of persons
convicted of felony offenses.” (>People v. Cruz (2012) 207 Cal.App.4th
664, 668, fn. omitted (Cruz).) The legislation “shifted responsibility for
housing and supervising certain felons from the state to the individual
counties. Thus, . . . once probation has
been denied, felons who are eligible to be sentenced under realignment will
serve their terms of imprisonment in local custody rather than state
prison.” (Id. at p. 671, fn. omitted; § 1170, subd. (h).)

A trial
court sentencing a defendant to county jail under section 1170,
subdivision (h) “has an alternative to a straight commitment to jail.” (Cruz,
supra, 207 Cal.App.4th at p.
671.) The court “can impose a hybrid
sentence in which it suspends execution ‘of a concluding portion of the term’
and sets terms and conditions for mandatory supervision by the county probation
officer. [Citation.]” (Ibid.) Specifically, section 1170, subdivision
(h)(5)(B)(i) (hereafter section 1170(h)(5)(B)(i)) provides that the court may
commit a defendant to county jail “[f]or a term as determined in accordance
with the applicable sentencing law, but suspend execution of a concluding
portion of the term selected in the court’s discretion, during which time the defendant shall be supervised by the county
probation officer in accordance with the terms, conditions, and procedures
generally applicable to persons placed on probation, for the remaining
unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory,
and may not be earlier terminated except by court order.” (Italics added.) This latter “portion of a defendant’s sentenced
term during which time he or she is supervised by the county probation officer”
is now known as “mandatory supervision.”
(§ 1170, subd. (h)(5)(B)(ii).)

2. Whether
a Fee for Supervision Costs May Be Imposed in Mandatory Supervision Cases

Defendant
contends that the monthly supervision fee imposed by the trial court for his
eight-month period of mandatory supervision by the probation department is
unauthorized and must be stricken.

The
Attorney General contends that the supervision fee is authorized by
sections 1170 and 1203.1b. The
Attorney General argues that “[o]ne of the ‘terms, conditions, and procedures
generally applicable’ to probationers” under section 1170 “is that they
pay the reasonable cost of probation supervision” pursuant to section 1203.1b.

In reply,
defendant asserts that section 1170 does not give a court the authority to
impose supervision fees under section 1203.1b.

To
determine whether the ordered fee for mandatory supervision is authorized, we
are required to interpret the language of sections 1170(h)(5)(B)(i), and
1203.1b. “ ‘When construing a statute, we must “ascertain the intent of
the Legislature so as to effectuate the purpose of the law.” ’
[Citations.] ‘[W]e begin with the
words of a statute and give these words their ordinary meaning.’ [Citation.]
‘If the statutory language is clear and unambiguous, then we need go no
further.’ [Citation.] If, however, the language supports more than
one reasonable construction, we may consider ‘a variety of extrinsic aids, including
the ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part.’ [Citation.]
Using these extrinsic aids, we ‘select the construction that comports
most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute, and avoid
an interpretation that would lead to absurd consequences.’ ”
(People v. Sinohui (2002) 28
Cal.4th 205, 211-212.)

Regarding
probation supervision costs, section 1203.1b provides that, “in any case
in which a defendant is granted probation . . . , the
probation officer . . . shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any probation
supervision . . . .”
(§ 1203.1b, subd. (a).) Further,
“[t]he 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 . . . .” (Id.,
subd. (b).) As we have stated,
section 1170(h)(5)(B)(i) provides that when the defendant is under
mandatory supervision, “the defendant shall
be supervised by the county probation
officer in accordance >with the terms, conditions, and
procedures generally applicable to persons placed on probation.” (Italics added.) We believe that the language of
section 1170(h)(5)(B)(i) clearly pertains to the nature and manner of supervision by the probation officer over
the defendant—in other words, the nature and manner of the supervision
itself—but that the language does not authorize the imposition of >supervision costs under section 1203.1b
to persons placed on mandatory supervision.

Our
construction of section 1170(h)(5)(B)(i) is supported by several
considerations.

First,
probation supervision costs are considered collateral to a grant of probation,
and therefore we are reluctant to construe broadly the language of
section 1170(h)(5)(B)(i) as authorizing the imposition of supervision >costs in mandatory supervision
cases. Former sections 1203 and
1203.1 long authorized trial courts to require the payment of certain items,
such as fines and financial reparation and restitution, in proper cases as
conditions of probation. (E.g., >People v. Lippner (1933) 219 Cal. 395,
398; In re McVeity (1929) 98 Cal.App.
723, 726; People v. Baker (1974) 39
Cal.App.3d 550, 559.) Under this former
statutory scheme, however, People v.
Baker, supra, concluded that the trial court was not authorized to impose a probation condition requiring the
defendant to pay for the costs of either his probation supervision or his
prosecution. (Id. at pp. 559-560.) The
appellate court observed that “[j]urisdictions that permit imposition of such
costs generally do so under the explicit authority of statute” and concluded
that “section 1203.1 explicitly authorizes the imposition of only limited fines
as part of probation, which in turn should be oriented towards rehabilitation
of the defendant and not toward the financing of the machinery of criminal
justice.” (Id. at p. 559.) After >People v. Baker, “the Legislature
enacted Penal Code section 1203.1b which permits the trial court to require a
defendant to reimburse probation costs if the court determines, after hearing,
that the defendant has the ability to pay all or a portion of such costs.” (People
v. Bennett (1987) 196 Cal.App.3d 1054, 1056, italics omitted (>Bennett); People v. Washington (2002) 100 Cal.App.4th 590, 595.) Courts have subsequently held that the
payment of probation costs under section 1203.1b may not be made a condition of
probation because such costs are collateral
to granting probation. (>Bennett, supra, at pp. 1056-1057; People
v. Hart (1998) 65 Cal.App.4th 902, 906-907; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321; >People v. Pacheco (2010) 187 Cal.App.4th
1392, 1401, 1402.) In view of the
collateral nature of probation supervision costs, we are reluctant to broadly
construe the language in section 1170(h)(5)(B)(i), which concerns the >nature and manner of supervision by the
probation officer over the defendant in a mandatory supervision case, to
include the authority of a court to impose the costs of mandatory supervision on a defendant.

Second,
subsequent to the amendment that added the language at issue in
section 1170, the Legislature amended two other Penal Code sections to
expressly provide that a particular fine and a particular cost are applicable
to mandatory supervision cases, even though similar amounts are already
applicable to probation cases. In
particular, although section 1202.44 already provides for the imposition of a
suspended probation revocation restitution fine whenever probation is imposed,
the Legislature amended section 1202.45 to require the imposition of a
suspended “mandatory supervision revocation restitution fine” in every case
where a person is subject to mandatory supervision under section 1170,
subdivision (h)(5)(B).
(§ 1202.45, subd. (b).) The
Legislature also amended section 1203.9, which provides for the
intercounty transfer of probation cases and the payment of costs for processing
a transfer, to include mandatory supervision cases. (§ 1203.9, subds. (a) & (d).) These subsequent amendments by the Legislature
to expressly provide for the payment of certain items by defendants in
mandatory supervision cases, where those payments are already authorized in
probation cases, suggest that the language in section 1170(h)(5)(B)(i) should
not be broadly construed to include the authority of a court to impose the
costs of mandatory supervision on a defendant under section 1203.1b. In view of these subsequent amendments,
presumably the Legislature would have expressly provided that supervision costs
under section 1203.1b must be borne by defendants in mandatory supervision
cases if the Legislature had so intended.
If the Legislature intends that supervision costs under section 1203.1b
be borne by defendants in mandatory supervision cases, we respectfully suggest
that the Legislature make that intent clear in the statutory language.

Lastly, a
prior version of section 1170 provided that a defendant’s sentence may include
“a period of county jail time and a period of mandatory probation not to exceed the maximum possible
sentence.” (Stats. 2011, ch. 39, § 27,
eff. June 30, 2011, operative Oct. 1, 2011 [italics added].) Before this prior version became operative,
section 1170 was amended to delete the reference to “mandatory probation” and
to include the language now at issue concerning a concluding portion of the
sentence where the defendant is “supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally applicable to
persons placed on probation.” (Stats.
2011-2012, 1st Ex.Sess., ch. 12, § 12, eff. Sept. 21, 2011, operative
Oct. 1, 2011; Stats. 2011, ch. 361, § 6.7, eff. Sept. 29, 2011, operative Oct.
1, 2011.) The change in the reference to
the latter portion of a defendant’s sentence—from probation to supervision by a
probation officer—suggests that the Legislature did not intend probation and
mandatory supervision to be interchangeable or otherwise identical in all
respects.

Based on
the foregoing considerations, and the language of
sections 1170(h)(5)(B)(i) and 1203.1b, we conclude that the ordered
monthly supervision fee of $110 is not authorized.href="#_ftn3" name="_ftnref3" title="">>[3] We will order the fee stricken. In view of our conclusion, we do not reach
defendant’s contention that there is insufficient evidence to support a finding
of his ability to pay the fee.

B.
Parole Revocation Restitution Fine

The trial
court ordered defendant to pay a suspended parole revocation restitution fine
of $800 pursuant to former section 1202.45.
On appeal, defendant contends that, because he was sentenced to jail
pursuant to section 1170, subdivision (h), he is not subject to parole and thus
the parole revocation restitution fine is unauthorized and must be
stricken. The Attorney General concedes
that the fine should be stricken.

We find the
concession appropriate. Former section
1202.45 provided that “[i]n every case where a person is convicted of a crime
and whose sentence includes a period of parole, the court shall at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional parole revocation restitution fine in the same amount as
that imposed pursuant to subdivision (b) of Section 1202.4.” (Stats. 2007, ch. 302, § 15; see § 1202.45,
subd. (a).) As we noted, in sentencing a
defendant to county jail under section 1170(h)(5)(B)(i), the trial court “can
impose a hybrid sentence in which it suspends execution ‘of a concluding
portion of the term’ and sets terms and conditions for mandatory supervision by
the county probation officer.
[Citation.]” (>Cruz, supra, 207 Cal.App.4th at p. 671.)
“[A] defendant sentenced under section 1170, subdivision (h) . . . is
not subject to a state parole period after his or her sentence is
completed. [Citation.])” (Cruz,
supra, at pp. 671-672, fn. omitted;
accord, People v. Lynch (2012) 209
Cal.App.4th 353, 357.) “Accordingly,
such a defendant is not subject to a parole revocation restitution fine. (§ 1202.45 . . . .)” (Cruz,
supra, at p. 672, fn. 6.) We will modify the judgment accordingly.

C. >Criminal Conviction Assessment

In the
waived referral memorandum, the probation department recommended the imposition
of a “Criminal Conviction Assessment” of $30 pursuant to Government Code
section 70373. At sentencing, the trial
court stated that the assessment “should be forty dollars per count for a total
of eighty dollars.” The court ultimately
ordered defendant to pay a criminal conviction assessment of $80.

On appeal,
defendant contends that Government Code section 70373 authorizes only $30 per
count, and therefore the trial court should have ordered him to pay only $60
for his two convictions. The Attorney
General agrees that the ordered assessment should be reduced from $80 to $60.

We find the
Attorney General’s concession appropriate.
Government Code section 70373, subdivision (a)(1) states that, “[t]o
ensure and maintain adequate funding for court facilities, an assessment shall
be imposed on every conviction for a criminal offense. . . . The assessment shall be imposed in the amount
of thirty dollars ($30) for each . . . felony . . . .” Defendant was convicted of two felonies in
this case. We will order the criminal
conviction assessment under Government Code section 70373 reduced to $60.

>IV. DISPOSITION

The
judgment is ordered modified by striking the monthly supervision fee of $110,
by striking the parole revocation restitution fine of $800 (former § 1202.45),
and





by reducing the total amount of the criminal conviction
assessment to $60 (Gov. Code, § 70373).
As so modified, the judgment is affirmed.









___________________________________________

Bamattre-Manoukian, J.











WE CONCUR:









__________________________

ELIA, ACTING P.J.















__________________________

Márquez,
J.