Filed 7/3/14 P. v. Alvarado 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058233

v.                                                                       (Super.Ct.No. NF1200489)

ANTONIO MORALES ALVARADO,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Affirmed.

         Susan L. Ferguson, 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, Senior Assistant Attorney General, Barry Carlton, and Heather

M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.




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                                             I

                                   INTRODUCTION

       A jury convicted defendant and appellant Antonio Morales Alvarado of assault

with a knife under Penal Code1 section 245, subdivision (a)(1) (count 1); domestic

criminal threats under section 422 (count 2); and spousal battery under section 243,

subdivision (e)(1) (count 4).

       The trial court granted defendant formal probation for 36 months, and ordered him

to spend 365 days in jail. However, because the trial court found that defendant had 638

days’ credit, he was immediately released from custody.

       On appeal, defendant contends that the trial court erred in imposing (1) collateral

fines and fees as terms and conditions of his probation; and (2) probation costs because

there was insufficient evidence that he had an ability to pay those costs. For the reasons

set forth below, we shall affirm the judgment.

                                             II

                                STATEMENT OF FACTS

       On February 21, 2012, defendant celebrated his birthday with his wife, Loretta

Alvarado (the victim), and their grandson, Adrian. Adrian was 10 years old at the time.

Defendant and the victim both drank an entire bottle of tequila after he came home from




       1      All statutory references are to the Penal Code unless otherwise indicated.

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work, followed by four bottles of champagne. They began drinking the tequila at

approximately 8:00 p.m., and Adrian went to sleep at 9 p.m. or 10 p.m.

          At some point, Adrian woke up and asked the victim to turn the music down.

Defendant and the victim began arguing over the volume of the music. The victim then

went to bed. Some time thereafter, defendant came into the bedroom and tried to rouse

the victim by pulling on her arm. He pulled her into the hallway, but the victim was too

intoxicated to remember what happened after that. They began arguing again; defendant

had a knife in his hand. He called the victim names and stated that she had ruined his

life. The victim got scared and told Adrian to go to the neighbors’ house and call the

police.

          Adrian ran next door and called 911. He told the 911 operator that his grandpa

had a knife and his grandma had a nail file for protection. Adrian said that his

grandparents were hitting and yelling, and that his grandpa was hurting his grandma by

pulling her hair and throwing her down. Adrian also stated that his grandpa was

threatening his grandma with a knife. The victim arrived at the neighbor’s house when

Adrian was on the telephone; she told the 911 operator that defendant tried to kill her

with a knife.

          Officer Graham Greer responded to the 911 call and made contact with both the

victim and Adrian. Adrian told the officer that he saw his grandpa pull the victim’s hair

and push her onto the bed. Adrian also said that his grandpa left the bedroom and went

back in with a knife, got on top of his grandma, called her names and threatened to kill

her. When his grandpa punched the bed with the knife four or five times, his grandma

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told Adrian to call for help. The victim, who was highly intoxicated, said that defendant

pulled her into the bedroom, pushed her on the bed, left briefly, and returned with a knife.

Defendant called her names and stated that she had ruined his life. Defendant threatened

to kill her.

        At trial, Adrian testified that his grandpa had pulled his grandma’s hair while she

was in bed and pulled her onto the floor. Adrian went to the restroom and could hear his

grandma yelling. When he came out of the restroom, his grandma told him to call the

police because his grandpa had a knife. Adrian testified that his grandparents were drunk

and that he never actually saw the knife. He said he told the 911 operator about the knife

because that is what his grandma told him. He did not remember his grandpa threatening

his grandma and said it could have been something that his grandma had told him.

                                             III

                                        ANALYSIS

        A.     The Minute Order Does Not Require Clarification

        Defendant contends that the trial court improperly imposed certain fees as

conditions of probation because these fees are collateral to the crime and punishment. As

such, defendant requests that the fees be deleted as probation conditions, and ordered

separately. The People contend that there is no need for clarification of the minute order

because the court separately ordered the fees and did not make them conditions of

probation.

        Payment of probation costs cannot be made a condition of probation. (People v.

Hall (2002) 103 Cal.App.4th 889, 892; see also People v. Pacheco (2010) 187

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Cal.App.4th 1392, 1399 [finding error to direct defendant to pay attorney fees, probation

supervision costs and court security fee as conditions of probation], disapproved on other

grounds in People v. McCullough (2013) 56 Cal.4th 589, 599.) An order requiring the

defendant to pay probation costs may only be enforced through a civil action. (Brown v.

Superior Court (2002) 101 Cal.App.4th 313, 322.)

       In this case, defendant contends that the trial court improperly imposed the

following fees as conditions of probation: (1) presentence probation fee (not to exceed

$785.00); (2) probation supervision fee (from $591.12 to $3,744.00); (3) booking fee

($450.34); and (4) security fee ($120.00). The probation report, however, does not show

that the challenged fees were to be included as conditions of probation. The probation

report recommended that defendant be granted formal probation for three years, and

delineated 27 terms and conditions for granting probation. These terms and conditions

are specifically numbered in the probation report. Following these delineated terms and

conditions, the report separately sets forth the recommendation that defendant be required

to pay the costs of the presentence probation report, probation supervision, booking fees,

and a security fee.

       At the sentencing hearing, the court stated that it had “read and considered the

probation report[,]” and its tentative sentence was “to follow the probation officer’s

recommendation that [defendant] be granted probation.” After both the prosecutor and

defense counsel submitted on the probation report, the court addressed each of the 27

separately delineated terms and conditions of probation set forth in the probation report.

During the hearing, the court struck conditions 6, 25, 26, and 27, which were then struck

                                             5
on the probation report also. After the court was done discussing the 27 probation terms

and conditions, the court ordered the knife destroyed, and that defendant pay the

challenged fees.

       The Report and Sentencing Minute Order also showed that the challenged fees

were separately ordered and not ordered as conditions of probation. The order stated:

“Formal Probation is Granted for a period of 36 months under the following terms and

conditions: . . .” After the last term and condition of probation is listed, the order stated

as follows:

       “FURTHER ORDER: Weapon(s) ordered disposed (PC 12028(2)(c)). Pay cost of

pre-sentence in amount to be determined by Probation, not to exceed $785.00 (PC

1203.1b). Pay the costs of probation supervision in an amount to be determined by the

Probation Department. Based on the level of supervision, the costs will range from

$591.12 to $3744.00 (PC 1203.1b). . . . As to count(s) 1 2 4, pay a fine of $420.00

including penalty assessment. Fine imposed includes security fee for 003 convicted

counts in an amount of $120.00 . . . . Pay booking fees of $450.34 (GC 29550).”

       Nonetheless, in his reply brief, defendant argues that, because the “FURTHER

ORDER” included some fines and fees that can be ordered as terms of probation, the

order needs clarification. We disagree. As discussed above, even if this part of the order

contained fines and fees that could have been ordered as terms of probation, this separate

part of the order clearly indicated that it was separate from the specified terms and

conditions of probation.



                                               6
       Based on the probation report, oral pronouncement during the sentencing hearing,

and the minute order, we find that the challenged fees were not imposed as conditions of

probation. Therefore, we need not modify the minute order to “delete” the challenged

fees as probation conditions or issue a separate order indicating that the challenged fees

do not constitute terms and conditions of defendant’s probation.

       B.      The Trial Court Properly Ordered Defendant to Pay Probation Costs

       Defendant contends that the trial court erred under section 1203.1b by imposing

fees for preparation of the presentence probation report and probation supervision

without advising him of his right to a hearing. He also contends that there was

insufficient evidence for the court to determine he had the ability to pay the fees. The

People contend that defendant has forfeited this issue. We agree.

       Section 1203.1b, subdivision (a), charges the probation officer with the duty of

determining the ability of the defendant to pay all or a portion of the reasonable cost of

any probation supervision or a conditional sentence. It further provides that 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 right

to a determination by the court of his or her ability to pay and the payment amount by a

knowing and intelligent waiver.” (See also People v. Valtakis (2003) 105 Cal.App.4th

1066, 1070.)

       In order to preserve a challenge to a trial court’s order to pay probation fees under

section 1203.1b, a defendant must first raise an objection in the trial court. (People v.

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Snow (2013) 219 Cal.App.4th 1148 [finding defendant forfeited claim that insufficient

evidence supported a finding of ability to pay probation report and supervision fees];

People v. Valtakis, supra, 105 Cal.App.4th at pp. 1068, 1071-1076 [a defendant cannot

challenge on appeal the issue of noncompliance with statutory procedures while imposing

a section 1203.1b fee when he failed to assert any objections in the trial court]; People v.

McCullough, supra, 56 Cal.4th at pp. 597-599 [the defendant forfeited his claim that

there was insufficient evidence to support his ability to pay a booking fee because he

failed to object below]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [challenge to

crime prevention fee forfeited]; but see People v. Pacheco, supra, 187 Cal.App.4th at p.

1397 [no forfeiture of issue regarding whether section 1203.1b fee was properly

imposed], disapproved by People v. McCullough, supra, 56 Cal.App.4th at p. 599.)2

       In People v. Valtakis, supra, 105 Cal.App.4th at pp. 1068-1076, the defendant

entered a negotiated plea, the court placed defendant on probation, and a probation

supervision fee was imposed under section 1203.1b. The probation officer did not

evaluate the defendant’s ability to pay or advise him of his right to a hearing on the issue,

as required under section 1203.1b. On appeal, the defendant, like defendant in this case,

challenged the probation fee. The appellate court held that the defendant’s failure to



       2       The California Supreme Court is currently considering the issue of whether
a defendant, who fails to object to an order for payment of probation supervision fees,
forfeits a claim that the trial court erred in failing to make a finding of an ability to pay.
(People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted Nov. 26, 2013,
S213571, and People v. Trujillo (2013) Cal.App.Unpub. LEXIS 5913, review granted
Nov. 26, 2013, S213687 [nonpub. Opn.].)

                                              8
object to noncompliance with the probation fee procedures of section 1203.1b waived the

issue on appeal. (Ibid.)

       In People v. McCullough, supra, 56 Cal.4th 589, the Supreme Court granted

review to determine whether a defendant, who does not object that the evidence is

insufficient to support a finding of his ability to pay a booking fee under Government

Code section 29550.2, forfeits his right to challenge the trial court’s imposition of the fee

on appeal. (Id. at p. 591.) The Supreme Court distinguished “between an alleged factual

error that had necessarily not been addressed below or developed in record because the

defendant failed to object, and a claimed legal error, which ‘can be resolved without

reference to the particular sentencing record developed in the trial court.’ [Citation.]”

(Id. at p. 594.) The court stated: “[W]e may review an asserted legal error in sentencing

for the first time on appeal where we would not review an asserted factual error. (Ibid.)

“In the case of an asserted legal error, ‘[a]ppellate courts are willing to intervene in the

first instance because such error is “clear and correctable” independent of any factual

issues presented by the record at sentencing.’ [Citation.]” (Ibid.) Ultimately, the

Supreme Court concluded that a defendant’s ability to pay a booking fee does not present

a legal issue; therefore, a defendant is not entitled to transform a factual issue into a legal

issue by asserting the record’s deficiency as legal error. The court held that the

defendant’s failure to object to the trial court’s imposition of a jail booking fee under

Government Code section 29550.2 forfeited a substantial evidence claim regarding

evidence of a defendant’s ability to pay because “a court’s imposition of a booking fee is

confined to factual determinations.” (Id. at p. 597.)

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       Here, the probation report was dated by the probation officer on December 20,

2012. At the sentencing hearing held on January 4, 2013, defense counsel indicated that

he was in receipt of the report and submitted on the report. In the report, the probation

officer recommended that defendant pay the challenged probation fees. Defendant,

therefore, had notice of the probation report’s recommendation that he pay the fees.

However, at no time during the sentencing hearing did defendant or his counsel raise any

objection to any issue with respect to any of the challenged fees. When the trial court

specifically ordered defendant to pay the probation supervision fees and report fees,

neither defendant nor his counsel objected. Having failed to do so, defendant has

forfeited his claim for purposes of appeal. (People v. McCullough, supra, 56 Cal.4th at

pp. 597-99; People v. Valtakis, supra, 105 Cal.App.4th at p. 1068.)

       Defendant’s reliance on People v. Pacheco, supra, 187 Cal.App.4th 1392, is

misplaced. In Pacheco, the trial court ordered a criminal justice administration fee, a

monthly probation supervision fee, and attorney fees without making a determination of

defendant’s ability to pay; defense counsel did not object. (People v. Pacheco, supra,

187 Cal.App.4th at pp. 1396, 1397.) On appeal, the defendant argued that the evidence

of his ability to pay was insufficient and the People contended that the issue was waived.

(Id. at p. 1397.) The appellate court found no evidence that defendant was advised of his

right to a hearing for the probation supervision fee, and no evidence that the defendant

waived that right. (Id. at p. 1401.) In addition, the appellate court found no evidence that

either the probation officer or the trial court made a determination that the defendant had



                                             10
an ability to pay the challenged fees. (Id. at pp. 1401-1404.) Pacheco, however, was

overruled by People v. McCullough, supra, 56 Cal.4th 589, as discussed above.

       Defendant, however, argues that People v. McCullough, supra, 56 Cal.4th 589,

does not apply by distinguishing the challenged fees in this case under section 1203.1b

from the booking fees involved in McCullough. In McCullough, the Supreme Court

illustrated the difference between booking fee statutes with statutes that provide

procedural guidelines, such as section 1203.1b. (Id. at pp. 498-499.) The court noted

that section 1203.1b sets forth “procedural requirements or guidelines for the ability-to-

pay determination,” and “[c]ertain fee payment statutes require defendants to be apprised

of their right to a hearing on ability to pay and afford them other procedural safeguards.”

(Id. at p. 598.) Based on this, defendant claims that “McCullough suggests that

[defendant’s] lack of objection does not forfeit his claim.” We disagree with defendant’s

analysis. In McCullough, the Supreme Court, when discussing statutes with procedural

safeguards or guidelines, was simply providing another reason why an objection to the

ability to pay a booking fee was required. The court did not imply that only a booking

fee required an objection.

       Therefore, based on People v. Snow, supra, 219 Cal.App.4th 1148; People v.

Valtakis, supra, 105 Cal.App.4th 1066; and People v. McCullough, supra, 56 Cal.4th

589, we hold that defendant has forfeited his claim.

       Notwithstanding defendant’s forfeiture, his contention fails on the merits because

the trial court made an implied finding of defendant’s ability to pay.



                                             11
       A trial court’s finding of an ability to pay may be implied, and will be upheld on

appeal if it is supported by substantial evidence. (People v. Phillips (1994) 25

Cal.App.4th 62, 70-71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)

       “Ability to pay” means the overall capacity of the defendant to reimburse the costs

or a portion of the costs of conducting the presentence report, and supervising the

defendant’s probation based upon various factors, including: (1) the defendant’s present

financial situation; (2) the defendant’s reasonably discernable future financial position,

i.e., a period of no more than one year from the time of hearing; (3) the defendant’s

likelihood of being able to obtain employment within a year from the date of the hearing;

and (4) any other factors that would impact the defendant’s ability to pay. (§ 1203.1b,

subd. (e).)

       In this case, there was sufficient evidence that defendant had the ability to pay the

probation fees. Defendant was interviewed by the probation officer with his attorney and

an interpreter present. Defendant provided his social history. He was a 44-year-old man

in good health, and had no children of his own. Defendant had been employed full time

as a sous chef at the same restaurant for approximately 27 years. He was also

immediately released from custody at the sentencing hearing. Defendant had the ability

to earn money to pay his probation supervision and report fees. The court specifically

noted during the hearing that defendant “had steady and lengthy employment.”

       The trial court, therefore, did not err in implicitly finding that there was sufficient

evidence to show that defendant had the ability to pay the probation supervision and

report fees.

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                                     IV

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                               RICHLI
                                                        J.

We concur:


RAMIREZ
                    P. J.


CODRINGTON
                       J.




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