P. v. Boyko
Filed 9/11/12 P. v. Boyko CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHAD ROBERT BOYKO,
Defendant and Appellant.
E054488
(Super.Ct.No. FVI1002448)
OPINION
APPEAL
from the Superior Court of
County. Miriam Ivy
Morton, Judge. Affirmed in part;
reversed in part and remanded with directions.
Raymond
M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Nguyen Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Chad Robert Boyko was charged with
parent of his child, resulting in a traumatic condition (Pen. Code,
§ 273.5, subd. (a), count 1),
2), dissuading a witness by force or threat (§ 136.1, subd. (c)(1),
count 3), and cutting a utility line (§ 591, count 4). It was further alleged that defendant had
suffered a prior prison conviction.
(§ 667.5, subd. (b).)
Defendant entered a plea agreement
and pled guilty to count 1. In exchange,
the trial court sentenced him to two years in state prison and dismissed the
remaining charges and allegation. The
court imposed various fees, including a booking fee and appointed counsel
fees. The court also imposed a restraining
order prohibiting defendant from having any contact with the victim for the
next 10 years.
On
appeal, defendant contends that: (1) the
imposition of the restraining order was an abuse of discretion, since the trial
court failed to consider the required factors under section 273.5 before
imposing it; (2) the restraining order is constitutionally overbroad; and (3)
the court failed to determine defendant’s ability to pay before ordering him to
pay booking fees and appointed counsel fees.
issued the restraining order without considering the factors listed in section
273.5. We thus reverse the restraining
order and remand the matter for the court to consider such factors to determine
if a restraining order is necessary. We
also reverse the order to pay appointed counsel fees and remand the matter for
the court to make a determination of defendant’s ability to pay such fees. In all other respects, we affirm.
FACTUAL BACKGROUND
The
parties stipulated to the factual allegations in the complaint and the police
report as the factual basis for the plea.
ANALYSIS
I. The Court Abused Its Discretion in Issuing
the Restraining Order
Defendant
argues that the court abused its discretion in issuing a 10-year restraining
order under section 273.5, subdivision (i), prohibiting him from having any
contact with the victim. He asserts that
the court’s decision was not based on any of the factors necessary for a proper
determination, since the court had no information before it regarding the
current offense, defendant’s background, or his relationship with the
victim. The People’s only contention is
that defendant waived the issue on appeal by failing to object at the time of
sentencing. We conclude that the matter
should be remanded for the trial court to consider the factors listed in
section 273.5, subdivision (i), to determine the necessity and length of a
restraining order.
A. Relevant
Background
At
the sentencing hearing, the court informed defendant that he had a right to
have his matter referred to probation for a presentence investigation and
report, and that he had a right to a hearing following the receipt of that
report. Defendant waived those rights
and asked the court to sentence him without further delay. The court then ordered him to pay certain
fees and sentenced him to two years in prison, pursuant to the terms of the
plea agreement. The court dismissed the
balance of the charges and the enhancement allegation and terminated a grant of
probation in an unrelated criminal matter.
The court proceeded to the matter of a restraining order, as
follows:
“The
Court: And then we have a CLETS
order. [¶] Mr. Boyko[,] I’m going to sign this
order. It’s in place for the next ten
years. You cannot have any contact at
all with [the victim]. Do you
understand?
“The
Defendant: Yeah. She sent me mail.
“The
Court: You cannot reply to it.
“The
Defendant: She can send it, but I can’t
reply? Sorry.
“The
Court: You are not allowed to have any
contact with her. You can’t send her a
letter, a note, a message, a message through another person. You can’t call her. You’re not allowed to have any contact with
her. Ten years. I’ll sign this and we’ll serve you with the
order before you leave court.â€
The court
then concluded the proceedings and remanded defendant to custody.
B. Defendant
Did Not Waive the Issue
Defendant
asserts the issue was not waived because he did not have a meaningful
opportunity to object to the restraining order.
He acknowledges that “complaints about the manner in which the trial
court exercises its sentencing discretion and articulates its supporting
reasons cannot be raised for the first time on appeal.†(People
v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) However, “the requirement of an objection at
trial is only realistic if counsel is given a ‘meaningful opportunity to
object.’ [Citation.]†(People
v. Superior Court (Dorsey) (1996)
50 Cal.App.4th 1216, 1223 [Fourth Dist., Div. Two].) “This opportunity can occur only if, during
the course of the sentencing hearing itself and before objections are made, the
parties are clearly apprised of the sentence the court intends to impose and
the reasons that support any discretionary choices.†(Scott,
at p. 356.)
Here,
defendant was denied a meaningful opportunity to object during the sentencing
hearing, since the parties were not clearly apprised of the sentence the court
supra, 9 Cal.4th at p. 356.)
The court did not address the matter of a restraining order until the
very end of the proceedings, after it had taken defendant’s plea, dismissed the
remaining charges, procured a waiver of a presentence investigation and report,
and imposed the two-year stipulated sentence.
Furthermore, when the court did address the restraining order, it simply
informed defendant that it was signing a restraining order that would be in
place for the next 10 years. The court
instructed defendant as follows: “You’re
not allowed to have any contact with her.
Ten years. I’ll sign this and
we’ll serve you with the order before you leave court.†The court’s comments clearly demonstrate it
was not apprising the parties of the sentence it intended to impose, or the
reasons that supported its discretionary choice. (Scott,
at p. 356) Rather, the court was
definitively telling defendant that it was imposing the restraining order. Thus, there was no meaningful opportunity to
object. (Ibid.) We additionally note
that the plea agreement made no mention of a restraining order.
The
People claim that defendant was provided with a meaningful opportunity to
object during the dialogue between the court and him concerning the restraining
order. However, the brief exchange that
followed the court’s announcement of the restraining order appeared to simply
be an explanation of the terms of the order.
The People claim that defendant had another opportunity to object when
the court asked, “Anything else for Mr. Boyko?â€
However, this question was the court’s last comment before remanding
defendant to custody. Given the court’s
clear indication that the restraining order was not up for debate, its
reference to “[a]nything elseâ€
implied that it was done discussing the matter of the restraining order.
The
People also rely upon People v. Zuniga
(1996) 46 Cal.App.4th 81 (Zuniga) in
arguing that defendant had a meaningful opportunity to object. However, that case is distinguishable. In Zuniga,
the defendant contended that the court failed to state its reasons for
sentencing him to prison rather than reinstating his probation. The People argued that he waived the issue on
appeal by failing to object at the time of sentencing. (Id.
at p. 84.) The defendant asserted
that he was denied a meaningful opportunity to object. (Ibid.) The court concluded that he did have such
opportunity, since, at the time his probation was revoked, he was in court with
counsel, was given the opportunity to address the court, heard the court
pronounce sentence, stated that he understood it, and voiced no objections. (Ibid.) Furthermore, there was a presentence report
by the probation officer recommending that probation be revoked, so the
defendant had notice and an opportunity to object. (Ibid.)
In
the instant case, defendant waived his right to have the matter referred to
probation for a presentence investigation and report. Thus, unlike the defendant in
the restraining order, or any meaningful opportunity to object.
C. The
Court Had No Basis for Issuing the 10-year Restraining Order
Section
273.5, subdivision (i), provides: “Upon
conviction under subdivision (a), the sentencing court shall also consider
issuing an order restraining the defendant from any contact with the victim,
which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the
length of any restraining order be based upon the seriousness of the facts
before the court, the probability of future violations, and the safety of the
victim and his or her immediate family.
This protective order may be issued by the court whether the defendant
is sentenced to state prison, county jail, or if imposition of sentence is
suspended and the defendant is placed on probation.â€
Aside
from the issue of the waiver, the People concede the merits of defendant’s
argument that the court abused its discretion in issuing the restraining
order. The trial court did not have a
probation report, police report, or any other information before it regarding
the facts of the case, defendant’s current relationship with the victim, his
background, or the likelihood of him reoffending. As the People even point out, it was “unclear
on what authority or facts the trial court relied . . . in issuing
the restraining order.†Since there was no
evidence upon which to base the decision to impose a 10-year restraining order,
the court abused its discretion in making the order. (See People
v. Cluff (2001) 87 Cal.App.4th 991, 998.)
The
parties agree that the appropriate remedy is to remand the matter for the trial
court to consider the factors listed in section 273.5, subdivision (i), in
order to determine whether a restraining order is necessary and, if so, how
long it should be. (See § 1260 [an
appellate court may “remand the cause to the trial court for such further
proceedings as may be just under the circumstancesâ€].)
We
acknowledge defendant’s additional argument that the restraining order is
unconstitutionally overbroad, in that it constitutes a complete ban on his
right of association with the victim.
Because we remand the order on other grounds, we will not address this
argument, except to note that “restriction of the right of association is part
of the nature of the criminal process,†and that “[c]ourts in other
jurisdictions have upheld the constitutionality of similar conditions on grants
of probation or parole.†(
816, 818.)
II. The Trial Court Failed to Make a
Determination of Defendant’s Ability to Pay Appointed Counsel Fees
Defendant
argues that the orders requiring him to pay $750 in appointed counsel fees and
$79.86 in booking fees must be stricken because the court failed to make a
determination of his ability to pay.
insufficient evidence to support any such determination. The People respond that because defendant did
not object below to the imposition of the fees in the absence of an ability to
pay determination, he has forfeited these claims. Otherwise, the People agree that the case
should be remanded for a hearing to determine his ability to pay. We conclude that defendant has not forfeited
his claims, and that the matter should be remanded for the court to determine
his ability to pay appointed counsel fees.
However, we also conclude that the court was not required to determine
his ability to pay the booking fees.
We
first consider the People’s contention that defendant has waived his claims by
failing to object to the fees below. We
recognize that some courts have found that a defendant forfeits any objection
to a fee by failing to object in the lower court. (See, e.g., People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072.) However, “we find that authority
distinguishable, and do not believe it can be rationally extended to bar objections
to an order for reimbursement of counsel fees, for the reason that
unless the defendant has secured a new, independent attorney when such an order
is made, [he] is effectively unrepresented at that time.†(People
v. Viray (2005) 134 Cal.App.4th 1186, 1214.) In other words, a forfeiture cannot “properly
be predicated on the failure of a trial attorney to challenge an order
concerning his own fees.†(
the court asking for an order taking money from the client and giving it to the
attorney’s employer, the representation is burdened with a patent conflict of
interest . . . .†(
Moreover,
defendant’s contentions are based on the insufficiency of the evidence to
support the orders. “[S]uch claims do
not require assertion in the court below to be preserved on appeal. [Citations.]â€
(People v. Pacheco (2010) 187
Cal.App.4th 1392, 1397 (Pacheco).)
claims regarding the appointed counsel and booking fees are not forfeited on
appeal, and we proceed to the merits of these claims. (See ibid.)
A. There
Was No Evidence of Defendant’s Ability to Pay Appointed Counsel Fees
The
court ordered defendant to pay appointed counsel fees in the amount of $750. It did not cite the statutory basis of the
order, but we assume the basis was section 987.8.
criminal defendants to pay all or part of the cost of their appointed counsel
after the trial court determines the defendant has a present ability to
pay. The ability to pay includes the
defendant’s reasonably discernible future financial position, limited to the
next six months.†(People v. Lopez (2005) 129 Cal.App.4th 1508, 1537, fn. omitted;
§ 987.8, subd. (g)(2)(B).)
“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. [Citations.]†(Pacheco,
supra, 187 Cal.App.4th at
p. 1398.)
We
read section 987.8 as “expressly requiring a finding—whether express or
implied—by the court of a defendant’s ability to pay as a condition to an order
assessing attorney fees . . . .â€
(Pacheco, supra, 187 Cal.App.4th at p. 1398.) Here, there is nothing in the record
addressing the issue of defendant’s ability to pay. Moreover, there is no evidence in the record
of defendant’s assets or means of income from which the court could have made a
determination of his ability to pay attorney fees. We further note that section 987.8 contains a
presumption that those sentenced to prison are unable to pay. It provides:
“Unless the court finds unusual circumstances, a defendant sentenced to
state prison shall be determined not to
have a reasonably discernible future financial ability to reimburse the costs
of his or her defense.†(§ 987.8,
subd. (g)(2)(B), italics added.) The court made no finding of unusual
circumstances.
In
sum, there is no evidence in the record of defendant’s assets, employment
status, or other means of income from which the court could have made a
determination of his ability to pay appointed counsel fees. There is thus no required finding of his
ability to pay attorney fees, either express or implied and, for this reason,
the attorney fee order cannot stand. (
court to determine defendant’s ability to pay, in accordance with section 987.8. (See id.
at p. 1404.)
B. The
Court Properly Imposed the Booking Fee
The
court here imposed a $79.86 booking fee payable to the Town of Apple
Valley. The court did not identify the
specific statutory basis of the booking fees, but the record shows that an
officer from the Apple Valley Police Department arrested defendant, and the fee
was ordered to be paid to the Town of Apple Valley. The identification of the Town of Apple
Valley as payee indicates the basis was Government Code section 29550.1, which
provides that “[a]ny city, special district, school district, . . .
or other local arresting agency whose officer or agent arrests a person is
entitled to recover any criminal justice administration fee imposed by a county
from the arrested person if the person is convicted of any criminal offense
related to the arrest.†(See also,
require a finding of ability to pay.
(See People v. Mason (2012)
206 Cal.App.4th 1026, 1033-1034 (Mason).)
Defendant
relies on Government Code sections 29550, subdivision (d)(2), and 29550.2,
subdivision (a), to support his argument that the trial court was required to
find his ability to pay before imposing a booking fee. He emphasizes that both statutes authorize
the imposition of a booking fee only if the defendant has the ability to
pay. However, both Government Code
sections 29550 and 29550.2 are inapplicable since they authorize
person arrested. (Govt. Code,
§§ 29550, subd. (c), 29550.2, subd. (a).)
In other words, Government Code section 29550 appears to apply to
defendants arrested by officers of a county, and Government Code “[s]ection
29550.2 applies to arrests by a ‘governmental entity not specified in Section
29550 or 29550.1,’ i.e., neither a ‘local arresting agency’ nor a county, and
thus probably in most or all cases a state agency such as the California
Highway Patrol.†(Mason, supra, 206
Cal.App.4th at p. 1031.) Defendant
here was not arrested by a county officer or state agency, and was not ordered
to reimburse a county, but rather the Town of Apple Valley.
We
conclude the trial court was not required to find an ability to pay before
imposing a booking fee under Government Code section 29550.1.
DISPOSITION
The
10-year restraining order and the order requiring defendant to pay appointed
counsel fees are reversed. The matter is
remanded for the trial court to consider the factors listed in section 273.5,
subdivision (i), in order to determine the necessity and length of an order
restraining defendant from contact with the victim. The court is also directed to make a
determination of defendant’s ability to pay appointed counsel fees, in
accordance with section 987.8. In all
other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
name="_ftn2" title=""> [2] This court granted defendant’s petition for
writ of habeas corpus, allowing him to file a late notice of appeal from the
judgment on the basis that the 10-year restraining order was not a condition of
the plea agreement, and his counsel did not advise him of his right to appeal.
