Filed 10/2/14 P. v. Nunez-Aguilar CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                     A139658
v.
ALFREDO NUNEZ-AGUILAR,                                               (Mendocino County Super. Ct.
                                                                     No. SCUK-CRCR-12-70360-02)
          Defendant and Appellant.


          Alfredo Nunez-Aguilar entered a negotiated plea of no contest to one count of
marijuana cultivation (Health & Saf. Code, § 11358) and was placed on probation. On
appeal, Nunez-Aguilar contests the trial court’s imposition, pursuant to Penal Code
section 1203.1b,1 of a presentence probation report fee, a probation supervision fee, and
an installment payment collection fee. We conclude that Nunez-Aguilar forfeited the
argument because he did not object to imposition of these fees below. Accordingly, we
affirm.
                         I.       FACTUAL AND PROCEDURAL BACKGROUND2
          On October 18, 2012, several police agents conducted a search of Nunez-Aguilar’s
property. Outside the home the officers found 35 marijuana plants, and a few previously
harvested plants. In the garage, the officers found 150 pounds of hanging, untrimmed
marijuana plants. An additional 16 pounds of loose trimmed bud marijuana was located


          1   Undesignated statutory references are to the Penal Code.
          2   The facts are taken from the probation report.

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on drying racks and in other containers. The officers also found a loaded revolver, a
semi-automatic handgun, a digital scale, a calculator, and $500.
       Nunez-Aguilar was charged, by information, with possession of marijuana for sale
(Health & Saf. Code, § 11359; count one). The information also alleged that Nunez-
Aguilar was armed with a firearm in the commission of the above offense (former
§ 12022, subd. (a)(1)). The information was later amended to charge Nunez-Aguilar with
a lesser related offense of marijuana cultivation (Health & Saf. Code, § 11358;
count two).
       In exchange for dismissal of count one and the firearm allegation, Nunez-Aguilar
entered a plea of nolo contendere to count two. The trial court explained the potential
sentence and that, among other consequences, Nunez-Aguilar could be required to pay
fines that would not exceed $20,000. Nunez-Aguilar agreed to proceed and enter his no
contest plea. Nunez-Aguilar also agreed he had enough time to discuss the matter with
his attorney and the attorney had answered all his questions. Nunez-Aguilar’s counsel
joined in the plea, which the trial court accepted.
       In advance of sentencing, a probation report was prepared that recommended
Nunez-Aguilar pay a $652 presentence investigation fee and $81 per month in
supervision fees. A proposed order of probation indicated that, if probation fees are paid
in installments, Nunez-Aguilar would be subject to a $75 installment payment collection
fee. The probation report also included information regarding Nunez-Aguilar’s financial
status and indicated that he “has been steadily employed for the past ten years,” most
recently as a supervisor at a lumber company. However, the report contained no express
determination of ability to pay and no advisement of a right to a hearing on that issue.
       At sentencing, Nunez-Aguilar’s trial counsel was specifically asked if he had any
concerns with the probation recommendations. Nunez-Aguilar’s trial counsel objected
only to a recommendation that Nunez-Aguilar be required to participate in a substance
abuse treatment program. Trial counsel said he had no further comments on the
probation report and that he thought “it’s a rather well done report. I have no real dispute
with any of it.” Before finally submitting the matter, Nunez-Aguilar’s counsel said, “I


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wonder if the Court can waive the $570 drug program fund fee . . . [because] the family’s
finances are not strong.”
       The trial court suspended imposition of sentence and placed Nunez-Aguilar on
three years’ probation conditioned on his serving 150 days in county jail. The court
struck the drug program fund fee, but ordered Nunez-Aguilar to pay, among other fines
and fees, a $652 presentence investigation report fee, a probation supervision fee of $81
per month, and a $75 installment payment collection fee. Nunez-Aguilar filed a timely
notice of appeal, based on “[d]enial of trial continuance, exclusion of Aguilar’s medical
records/Prop. 215 recommendation.” The trial court granted his request for a certificate
of probable cause.
                                     II.    DISCUSSION
       Nunez-Aguilar argues that the trial court erred by imposing fees for preparation of
the presentence probation report, probation supervision, and installment payment
collection pursuant to section 1203.1b, without making a finding of his ability to pay. He
also contends that there is insufficient evidence to support any such determination.
       Section 1203.1b, subdivision (a), provides in relevant 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, whether or not probation supervision is ordered by the court, and
in any case in which a defendant is granted probation or given a conditional sentence, 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 or a conditional sentence,
of conducting any preplea investigation and preparing any preplea report pursuant to
Section 1203.7, of conducting any presentence investigation and preparing any
presentence report made pursuant to Section 1203 . . . whichever applies. . . . 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


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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 right to a determination by the court of
his or her ability to pay and the payment amount by a knowing and intelligent waiver.”
       Section 1203.1b, subdivision (b), provides: “When the defendant fails to waive
the right provided in subdivision (a) to a determination by the court of his or her ability to
pay and the payment amount, the probation officer shall refer the matter to the court for
the scheduling of a hearing to determine the amount of payment and the manner in which
the payments shall be made. The 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 . . . .”
Section 1203.1b, subdivision (h), provides: “The 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, not to exceed the administrative and
clerical costs of the collection of those installment payments as determined by the board
of supervisors, except that the fee shall not exceed seventy-five dollars ($75).”
       Nunez-Aguilar contends: “[A]t the time of the sentencing hearing . . . , the
probation office had already completed its evaluation of [Nunez-Aguilar’s] ability to pay
pursuant to . . . section 1203.1b, subdivision (a), and included the dollar amount of the
fees it had determined [Nunez-Aguilar] should pay in the proposed order of probation.
At that point in the proceedings, the court was required by section 1203.1b, subdivision
(a), to either make a determination of [Nunez-Aguilar]’s ability to pay the fees, or ask
[Nunez-Aguilar] if he wished to ‘waive the right to a determination by the court . . . by a
knowing and intelligent waiver.’. . . [¶] . . . [¶] [But], the trial court erred because it
failed to obtain a required waiver of its duty to make an ability to pay finding that was
knowing and intelligent . . . .”
       We agree with the People that Nunez-Aguilar forfeited his arguments by failing to
raise them below. There is a split of authority regarding whether a defendant must object
in the trial court in order to preserve a challenge to an order to pay fees under section


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1203.1b. (Compare People v. Snow (2013) 219 Cal.App.4th 1148, 1151 (Snow) and
People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071–1076 (Valtakis) with People v.
Povio (2014) 227 Cal.App.4th 1424, 1429 (Povio).)3
       In People v. McCullough (2013) 56 Cal.4th 589 (McCullough), our Supreme Court
recently resolved a similar conflict regarding whether a defendant who fails to object to a
booking fee, imposed under Government Code section 29550.2, subdivision (a), forfeits
the right to challenge it on appeal.4 (McCullough, at pp. 590–591.) The court looked
first to the plain language of the Government Code and concluded it was clear that “[the]
defendant had the right to a determination of his ability to pay the booking fee before the
court ordered payment.” (Id. at pp. 592–593.) Nonetheless, it explained that a right of
any sort “ ‘ “ ‘may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” ’
[Citation.]” (Id. at p. 593.) The court distinguished questions of law from factual issues
not developed in the record below and concluded, “because 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.” (Id. at p. 597.) The court expressly disapproved People v.
Pacheco (2010) 187 Cal.App.4th 1392, in which the Sixth District Court of Appeal held
that challenges to the sufficiency of the evidence to support an order for probation related
costs do not need to be raised in the trial court in order to be preserved on appeal.
(McCullough, at p. 599.)




       3Our Supreme Court is currently considering the issue. (People v. Aguilar (2013)
219 Cal.App.4th 1094, review granted Nov. 26, 2013, S213571; People v. Trujillo
(Aug. 22, 2013, H038316), review granted Nov. 26, 2013, S213687 [nonpub. opn.].)
       4 Government Code section 29550.2, subdivision (a), provides, in relevant part, “If
the person has the ability to pay, a judgment of conviction shall contain an order for
payment of the amount of the criminal justice administration fee by the convicted
person . . . .”


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       Nunez-Aguilar attempts to distinguish McCullough by pointing out that, unlike
Government Code section 29550.2, section 1203.1b imposes extensive procedural
guidelines. He asserts: “[T]he issue raised . . . here is not based on sufficiency of the
evidence to support a finding of ability to pay, as in McCullough, but on the trial court’s
failure to act in compliance with the statutory requirements of . . . section 1203.1b,
subdivision (a). [¶] . . . [¶] [T]he McCullough holding applies to statutes which do not
expressly require the trial court to either make an ability to pay determination, or obtain a
waiver of the defendant’s right to such a determination, as provided in . . .
section 1203.1b, subdivision (a).”
       In McCullough, our Supreme Court noted: “[O]ur review of other statutes where
the Legislature has similarly required a court to determine if a defendant is able to pay a
fee before the court may impose it supports our conclusion. In contrast to the booking
fee statutes, many of these other statutes provide procedural requirements or guidelines
for the ability-to-pay determination. Certain fee payment statutes require defendants to
be apprised of their right to a hearing on ability to pay and afford them other procedural
safeguards. (See, e.g., . . . §§ 987.8, 1203.1b [payment of cost of probation supervision].)
. . . Other fee payment statutes merely identify factors a court should consider in deciding
whether to impose fees. In many of these instances, the Legislature has articulated a
fairly uniform set of factors that affect a defendant’s ability to pay the fees in question:
the defendant’s present financial position; his or her reasonably likely future financial
position; and fines and fees already imposed. . . . [¶] We note these statutes because they
indicate that the Legislature considers the financial burden of the booking fee to be de
minimis and has interposed no procedural safeguards or guidelines for its imposition. In
this context, the rationale for forfeiture is particularly strong. [Citations.]” (McCullough,
supra, 56 Cal.4th at pp. 598–599.)
       Unlike the Povio court, we do not read this language in McCullough to suggest
that only objections to booking fees are subject to forfeiture. (Povio, supra,
227 Cal.App.4th at p. 1429.) In our view, the Supreme Court was merely expressing an
additional reason that forfeiture principles should apply. Here, Nunez-Aguilar’s ability to


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pay the probation fees imposed, pursuant to section 1203.1b, is a factual issue not
developed in the record below. Thus, the remainder of the McCullough reasoning
applies. (McCullough, supra, 56 Cal.4th at p. 597.)
       The Snow court extended the McCullough forfeiture principles to probation fees
imposed under section 1203.1b. (Snow, supra, 219 Cal.App.4th 1148, 1151.) And, even
before McCullough was decided, the Valtakis court reached a similar conclusion.
(Valtakis, supra, 105 Cal.App.4th 1066, 1076.) In Valtakis, the defendant argued, as
Nunez-Aguilar does here, that the trial court erred in imposing a probation fee without
compliance with the procedures articulated in section 1203.1b. (Id. at pp. 1070–1071.)
The defendant argued, “Without notice [of the right to a court determination of ability to
pay], . . . one cannot intelligently waive the right and therefore must be able to assert it
for the first time on appeal.” (Id. at p. 1073.) Division Two of this court rejected the
argument, noting that the unauthorized sentence exception to waiver did not apply
because “a probation fee could have been lawfully imposed had an ability to pay
appeared, a clearly fact-bound determination.” (Id. at p. 1072, italics omitted.) The court
held that a defendant may not “stand silent as the court imposes a fee—even a nominal
one like the $250 here—and then complain for the first time on appeal that some aspect
of the statutory procedure was not followed[.]” (Id. at p. 1075.) To allow a defendant to
do so “would work results horribly at odds with the overarching cost conservation policy
of the section.” (Ibid.)
       Here, the probation report and proposed order of probation recommended Nunez-
Aguilar pay the $652 presentence investigation fee, the $81 per month supervision fee
and, if applicable, the $75 installment payment collection fee. Nunez-Aguilar’s trial
counsel indicated that he had received and read the report before sentencing.
Nonetheless, at sentencing, neither Nunez-Aguilar nor his trial counsel raised any
objection to these fees, and there was no development of the factual “ability to pay”
issue. Accordingly, Nunez-Aguilar forfeited his argument on appeal. (McCullough,
supra, 56 Cal.4th at pp. 597–599; Snow, supra, 219 Cal.App.4th at p. 1151; Valtakis,
supra, 105 Cal.App.4th at pp. 1071–1076.)


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                                 III.   DISPOSITION
     The judgment is affirmed.




                                              _________________________
                                              Bruiniers, J.


We concur:


_________________________
Simons, Acting P. J.


_________________________
Needham, J.




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