Filed 11/15/13 P. v. Chadd CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065687
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12300010)
                   v.

LESLIE ZELMAN CHADD,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jon N.
Kapetan, Judge.
         John Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-



*        Before Kane, Acting P.J., Poochigian, J. and Franson, J.
       Defendant Leslie Zelman Chadd pled no contest to assault by means likely to
cause great bodily injury (Pen. Code, § 245, former subd. (a)(1), now subd. (a)(4))1 and
admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The
trial court sentenced him to four years in prison and imposed various fines and fees,
including a $296 fee for a presentence probation report pursuant to section 1203.1b. On
appeal, defendant contends (1) the trial court failed to inform him of his right to contest
imposition of the fee and (2) there was insufficient evidence he could afford to pay the
fee. We agree with the People that defendant has forfeited the claims by failing to object
in the trial court.
                                       DISCUSSION
       The $296 probation report fee was based on section 1203.1b, which authorizes the
recoupment of certain costs incurred for the preparation of presentence investigations and
reports on the defendant’s amenability to probation. (See People v. Valtakis (2003) 105
Cal.App.4th 1066, 1070 (Valtakis).) Section 1203.1b, subdivision (b) provides in
pertinent part: “The [trial] 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, or his or her authorized representative.”
       We conclude defendant forfeited the issue by not objecting at sentencing.
(Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072 [§ 1203.1b probation fee].) In People
v. McCullough (2013) 56 Cal.4th 589 (McCullough), our Supreme Court recently held
that the defendant’s failure to object to the imposition of a jail booking fee (Gov. Code,
§ 29550.2) forfeited the claim that he lacked the ability to pay the fee. The court
concluded that the defendant’s financial ability to pay the fee was a question of fact, not
law. (McCullough, supra, at p. 597.) “Defendant may not ‘transform … a factual claim
into a legal one by asserting the record’s deficiency as a legal error.’ [Citation.] By
1      All statutory references are to the Penal Code unless otherwise noted.



                                              2.
‘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.] … [B]ecause a court’s imposition of a booking fee is confined to
factual determinations, a defendant who fails to challenge the sufficiency of the evidence
at the proceeding when the fee is imposed may not raise the challenge on appeal.” (Ibid.)
       The same rationale applies to presentence probation report fees. Before
sentencing, defendant was in possession of the probation officer’s report, which
recommended that the court impose a $296 probation report fee pursuant to
section 1203.1b. At the sentencing hearing, defense counsel stated defendant had
received the report and had no additions, comments, or corrections to the report. When
the court sentenced defendant and imposed the fee, defendant did not object to the fee
and thus challenges to the fee are forfeited on appeal.
       Defendant maintains that the trial court did not follow the procedures required by
section 1203.1b and, as a result, he did not make a knowing and intelligent waiver of his
right to a determination by the court of his ability to pay.2 “People v. Valtakis, supra,


2       Section 1203.1b subdivision (a), provides in pertinent part: “In any case in which
a defendant is convicted of an offense and is the subject of any preplea or presentence
investigation and report …, the probation officer, or his or her authorized representative,
… shall make a determination of the ability of the defendant to pay all or a portion of the
reasonable cost of any probation supervision or a conditional sentence, of conducting any
preplea investigation and preparing any preplea report pursuant …, of conducting any
presentence investigation and preparing any presentence report made pursuant … and of
processing a jurisdictional transfer pursuant … or of processing a request for interstate
compact supervision .… The court shall order the defendant to appear before the
probation officer, or his or her authorized representative, to make an inquiry into the
ability of the defendant to pay all or a portion of these costs. The probation officer, or his
or her authorized representative, shall determine the amount of payment and the manner
in which the payments shall be made to the county, based upon the defendant’s ability to
pay. The probation officer shall inform the defendant that the defendant is entitled to a
hearing, that includes the right to counsel, in which the court shall make a determination
of the defendant’s ability to pay and the payment amount. The defendant must waive the


                                               3.
105 Cal.App.4th 1066, however, held a defendant’s failure to object at sentencing to
noncompliance with the probation fee procedures of section 1203.1b waives any claim of
error on appeal. (105 Cal.App.4th at p. 1068.)” (People v. Aguilar (2013) 219
Cal.App.4th 1094, 1098 [2013 Cal.App. Lexis 753, 7]; see also People v. Robinson
(2002) 104 Cal.App.4th 902, 905-906 [procedural irregularities waived by not objecting
to imposition of probation report fee]; People v. Gibson (1994) 27 Cal.App.4th 1466,
1468-1469.) Valtakis explained: “To allow a defendant and his counsel to stand silently
by as the court imposes a $250 fee, as here, and then contest this for the first time on an
appeal that drains the public fisc of many thousands of dollars in court and appointed
counsel costs, would be hideously counterproductive. It would also be completely
unnecessary, for the Legislature has provided mechanisms in section 1203.1b for
adjusting fees and reevaluating ability to pay without an appeal anytime during the
probationary period (§ 1203.1b, subd. (c)) or the pendency of any judgment [citation].”
(Valtakis, supra, at p 1076.)
       Defendant acknowledges Valtakis, but states that its authority is uncertain while
review was pending in McCullough. Since defendant’s statement, however, McCullough
has been decided against defendant.3
                                      DISPOSITION
       The judgment is affirmed.




right to a determination by the court of his or her ability to pay and the payment amount
by a knowing and intelligent waiver.”
3      We note that McCullough disapproved People v. Pacheco (2010) 187 Cal.App.4th
1392, a case relied upon by defendant. (McCullough, supra, 56 Cal.4th at p. 599.)



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