Filed 7/13/15 P. v. Hernandez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060718

v.                                                                       (Super.Ct.No. BAF1300205)

FRANCISCO JAVIER HERNANDEZ,                                              OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed.

         Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and

Respondent.




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       Defendant and appellant Francisco Javier Hernandez appeals after he was

convicted of kidnapping (Pen. Code, § 209, subd. (a)), assault by means of force likely to

produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and robbery (Pen. Code,

§ 211). The trial court found this was an unusual case pursuant to California Rules of

Court, rule 4.413, and granted probation; the court placed defendant on supervised

probation for three years. Among other sentencing orders, defendant was ordered to pay

$43,722.94 for presentence incarceration costs under Penal Code section 1203.1c.

Defendant contends the matter must be reversed and remanded as to the order to pay

incarceration costs, because the trial court failed to hold a hearing on defendant’s ability

to pay before entering the order. We agree with the People’s contention that defendant

forfeited the issue by failing to raise it below. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Juan Arriaga, the victim, had known defendant and defendant’s brother, Luis, for a

few years. In 2012, the three men planned to start a business selling and installing

security camera systems. Defendant and Luis gave Arriaga $10,000 to purchase the

necessary equipment, and Luis lent him $3,000 to repair Arriaga’s car, after it had been

damaged in an accident. Arriaga agreed to repay the $3,000 to Luis in three installments.

Arriaga put the cameras and other components together, and he was the installer for the

business. The camera system equipment was stored at Luis’s house. Defendant and Luis

also gave Arriaga a mobile telephone for use in the business.




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       After working with defendant and Luis for several months, Arriaga wanted to quit.

He had grown increasingly uncomfortable about the practices of the business. In one

instance, Arriaga discovered that a security camera had been installed on a premises

without the consent of all the parties. Another time, defendant and Luis told Arriaga to

go into a business and onto the premises and remove all the cameras. Arriaga was

concerned that he was being asked to do something illegal.

       In approximately December 2012 or January 2013, defendant telephoned Arriaga

and they arranged to have a meeting the following Tuesday to discuss the matter. Arriaga

was uncomfortable, however, and he did not show up for the meeting. Arriaga called

defendant a couple of times after that, but defendant did not answer or respond. Arriaga

had no further contact with defendant. The mobile phone defendant and Luis had given

him stopped working.

       On February 2, 2013, a few weeks after the abortive meeting, Arriaga left his

girlfriend’s apartment at 6:30 or 7:00 a.m. to go to work. His car was parked on the

street. When Arriaga got into his car, warning lights alerted him to a problem with the

tires. Arriaga got out of the car and inspected the tires; he discovered that the two tires

on the side of the car nearest the curb were flat.

       As Arriaga was standing in the street, he saw defendant and Luis in a truck driving

toward him at a high rate of speed. Defendant was driving; he halted the truck in front of

Arriaga’s car. Luis got out of the truck and yelled angrily at Arriaga. He demanded that

Arriaga pay back the $10,000 for the security equipment. Luis said he would take



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Arriaga’s car and hold it until the money was repaid. Luis attempted to grab the car keys

from Arriaga’s hand and they struggled. Arriaga said that he was working on his own

now, and that he needed more time to pay the brothers back.

       While Luis struggled with Arriaga over the car keys, defendant also got out of the

truck and joined the fight. Defendant kneed Arriaga in the chest and said, “ ‘Don’t you

ever try to tell me, oh, another Tuesday,’ ” in apparent reference to the missed meeting

several weeks earlier. Arriaga was knocked to the ground, and defendant continued

hitting him in the chest. Luis took Arriaga’s car keys while defendant was hitting

Arriaga. Arriaga later reported that he had pain from the beating for three months.

Defendant pulled Arriaga up by grabbing him around the neck. Arriaga was not fighting

back. Defendant dragged Arriaga toward another car; the back door of the car was open,

and defendant tried to shove Arriaga inside. Arriaga resisted by pushing back with his

feet, and he managed to break away.

       Luis told Arriaga that he had one day to repay the money. He threatened Arriaga

that what Arriaga had just experienced was “only a small test,” and that he and defendant

knew where Arriaga’s children lived. Luis also demanded return of the mobile phone he

and defendant had given to Arriaga. Arriaga said he needed the car keys, because the

phone was locked in the car. Arriaga grabbed his car keys, and retrieved the phone,

which he gave to Luis. Luis did not try to take back the car keys again.




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         Surveillance cameras at the apartment complex had recorded the altercation. The

video was played for the jury.

         Defendant and his brother were both charged as a result of these events.

Defendant was convicted by a jury of kidnapping to exact money, assault by force likely

to produce great bodily injury, and robbery.

         At sentencing, the trial court found that, although defendant’s offenses would

ordinarily disqualify him from probation, probation could be granted based on unusual

circumstances. The court placed defendant on formal probation for three years. Among

the conditions of probation were that defendant serve 365 days in county jail, with credit

for the 307 days he had already served. Defendant was also ordered to pay $43,722.94 in

presentence incarceration costs pursuant to Penal Code section 1203.1c.

         Defendant filed a notice of appeal, contending that the evidence was insufficient to

support the order to pay presentence incarceration costs, because the trial court had failed

to hold a hearing, as provided in the statute, regarding defendant’s ability to pay such

costs.

                                         ANALYSIS

 I. Defendant Failed to Request a Hearing on His Ability to Pay, Forfeiting the Right to

                                  Raise the Issue on Appeal

         Although defendant frames the issue on appeal as a matter of sufficiency of the

evidence of his ability to pay the presentence incarceration costs, the People raise a

preliminary issue: whether defendant forfeited the right to raise the issue on appeal by



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failing to request a hearing below, or failing to object to the order imposing the

incarceration costs. Defendant responds that he was not informed that he had a right to

request a hearing on his ability to pay, and he never expressly waived that right. Citing

People v. O’Connell (2003) 107 Cal.App.4th 1062, at pages 1067-1068, and People v.

Pacheco (2010) 187 Cal.App.4th 1392, at pages 1401 and 1404, defendant maintains that

a remand to the trial court is warranted to determine a defendant’s ability to pay where

the record does not indicate that any determination of ability to pay was previously made.

       Penal Code section 1203.1c, subdivision (a), provides in relevant part that, if a

probationer is ordered to serve time in local custody as a condition of probation, the trial

court “may, after a hearing, make a determination of the ability of the defendant to pay all

or a portion of the reasonable costs of such incarceration, including incarceration pending

disposition of the case.” The probation report recommended ordering defendant to pay

$41,159.98 as the cost of presentence incarceration for 289 days. At the sentencing

hearing, the court mused that defendant had been facing life in prison, had the court not

found unusual circumstances justifying a grant of probation. The court ordered defendant

serve 365 days in the county jail as a condition of probation; defendant was given credit

for 307 days already served. Without holding a hearing on defendant’s ability to pay, the

court proceeded to order defendant to pay $43,722.94 for the 307 days of presentence

custody he had already served. Neither defendant nor his counsel objected, or requested

a hearing on defendant’s ability to pay.




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       Defendant’s reliance on People v. O’Connell, supra, 107 Cal.App.4th 1062, and

People v. Pacheco, supra, 187 Cal.App.4th 1392, for the proposition that a case should

be remanded to the trial court for a hearing on ability to pay, is misplaced.

       People v. Pacheco, supra, 187 Cal.App.4th 1392, involved two similar provisions:

Penal Code section 1203.1b, which authorizes a court to order a probationer to pay

probation costs as a condition of probation, and Penal Code section 987.8, which permits

the trial court to order a defendant to repay all or some of the costs of representation by

appointed counsel. Like Penal Code section 1203.1c, both Penal Code section 987.8 and

Penal Code section 1203.1b provide for a hearing and a court determination on a

defendant’s ability to pay before imposing an order to repay some or all of the costs of

appointed counsel or the costs of probation supervision. In Pacheco, the trial court had

failed to hold any hearing on the defendant’s ability to pay; accordingly, the defendant

argued on appeal that the evidence was insufficient to support the orders. (People v.

Pacheco, supra, 187 Cal.App.4th 1392, 1397, 1398-1399, 1400-1402.)

       The Pacheco court rejected the People’s assertion that the claims were forfeited on

appeal. The court stated that the defendant’s “claims are based on the insufficiency of the

evidence to support the order or judgment. We have already held that such claims do not

require assertion in the court below to be preserved on appeal. [Citations.] Respondent

offers nothing to convince us otherwise. We accordingly conclude that Pacheco’s claims

are not forfeited or waived on appeal and we will proceed to the merits.” (People v.

Pacheco, supra, 187 Cal.App.4th 1392, 1397.)



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       Since Pacheco was decided, however, it has been overruled in part in both People

v. McCullough (2013) 56 Cal.4th 589 and People v. Trujillo (2015) 60 Cal.4th 850,

precisely on the question of the forfeiture of the right to ability-to-pay hearings, if no

objection or request was made in the lower court. In McCullough, the California

Supreme Court considered an order that the defendant pay a booking fee under

Government Code section 29550.2, subdivision (a). 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 [booking] fee by the convicted person . . . .” The court held that,

based on the statutory language, the defendant had a right to a determination of his ability

to pay before the court ordered him to pay the booking fee. However, a right—even a

constitutional right—may be forfeited in criminal as well as civil cases by the failure to

assert the right in a timely fashion. “ ‘Ordinarily, a criminal defendant who does not

challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or

her right to raise the claim on appeal.’ [Citation.] ‘ “The purpose of this rule is to

encourage parties to bring errors to the attention of the trial court, so that they may be

corrected. [Citation.]” ’ [Citation.] Additionally, ‘[i]t is both unfair and inefficient to

permit a claim of error on appeal that, if timely brought to the attention of the trial court,

could have been easily corrected or avoided.’ [Citation.]” (People v. McCullough,

supra, 56 Cal.4th 589, 593.)




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       Application of the forfeiture rule is not automatic; there are exceptions when

competing concerns may persuade the appellate court to conclude that the failure to

object does not forfeit review. For example, a forfeiture rule for failure to plead the

statute of limitations does not apply because it would run counter to the Legislature’s

intent in providing the statute of limitations. (People v. Williams (1999) 21 Cal.4th 335,

344.) “Parties may generally challenge the sufficiency of the evidence to support a

judgment for the first time on appeal because they ‘necessarily objected’ to the

sufficiency of the evidence by ‘contesting [it] at trial.’ [Citations.]” (People v.

McCullough, supra, 56 Cal.4th 589, 596.) Defendant has cast his claim as one for

insufficiency of the evidence, attempting to bring his challenge within the “sufficiency of

the evidence” exception to the forfeiture rule. However, in contrast to sufficiency-of-the-

evidence challenges to questions placed at issue in a trial—as to which an objection is

“necessarily” implied, there was no contested hearing below, and no factual record

developed, on the matter of defendant’s ability to pay. The McCullough court opined that

a reviewing court is more willing to review an issue in the first instance on appeal if it is

one of law, but that forfeiture applies to alleged factual errors. (Id. at p. 594.) “Ability to

pay” is dependent on the resolution of many factual considerations, and is not easily

reviewable on appeal in the first instance, particularly if no record has been developed.

(Id. at p. 592.)




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       The court held that, “because a court’s imposition of a booking fee is confined to

factual determinations [i.e., ability to pay], 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.” (People v. McCullough, supra, 56 Cal.4th 589, 597.) Notably, the

court also stated: “Given that imposition of a fee is of much less moment than imposition

of sentence, and that the goals advanced by judicial forfeiture apply equally here, we see

no reason to conclude that the rule permitting challenges made to the sufficiency of the

evidence to support a judgment for the first time on appeal ‘should apply to a finding of’

ability to pay a booking fee under Government Code section 29550.2. [Citation.] We

disapprove People v. Pacheco, supra, 187 Cal.App.4th 1392, to the extent it holds the

contrary.” (People v. McCullough, supra, at p. 597.)

       In People v. Trujillo, supra, 60 Cal.4th 850, the defendant had been ordered to pay

both a booking fee (Gov. Code, § 29550.1) and the cost of a probation investigation

report (Pen. Code, § 1203.1b). Defendant did not object below to either order. The

Court of Appeal, following McCullough, found that the defendant had forfeited the right

to challenge the booking fee, but reversed and remanded with directions to follow the

procedures outlined in Penal Code section 1203.1b for determining the defendant’s

ability to pay the probation cost of the presentence report. The Court of Appeal expressly

relied on its decision in People v. Pacheco, supra, 187 Cal.App.4th 1392; it found that

the failure to follow the procedures provided in the statute (determination by the

probation officer of the costs and the defendant’s ability to pay, duty to inform the



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defendant of the right to a hearing on ability to pay, waiver by the defendant, and, if the

defendant does not waive the hearing, referral to the trial court for a determination of

ability to pay) was a deficiency compelling reversal. The California Supreme Court, on

review, disagreed and found that the failure to object below to the imposition of the

probation costs under Penal Code section 1203.1b resulted in a forfeiture of the ability-to-

pay issue on appeal. The court expressly “further disapproved” People v. Pacheco, “to

the extent it is inconsistent with this opinion.” (People v. Trujillo, supra, 60 Cal.4th 850,

858, fn. 5.)

       Given the binding precedents (Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 455) concerning forfeiture (by failure to object) with respect to similar

ability-to-pay sentencing issues, we conclude that orders to pay incarceration costs under

Penal Code section 1203.1c are also subject to forfeiture by failure to object.

       Defendant is not, however, wholly without remedy. Penal Code section 1203.1c,

subdivision (a), provides the trial court with discretion to conduct a hearing to modify the

order while defendant remains on probation: That is, “[t]he court may, in its discretion,

hold additional hearings during the probationary period.” Defendant may petition the

court to hold such a hearing.




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                                     DISPOSITION

       We conclude that defendant forfeited the issue raised on appeal (sentencing order

to pay presentence incarceration costs under Pen. Code, § 1203.1c) by failing to raise any

objection or to request a hearing below. The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              McKINSTER
                                                                              Acting P. J.
We concur:



KING
                          J.



CODRINGTON
                          J.




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