Filed 10/16/13 P. v. Cole CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062648

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD210516)

ALEXANDER CHRISTOPHER COLE II,

         Defendant and Appellant.


         APPEAL from order of the Superior Court of San Diego County, Kenneth K. So,

Judge. Reversed in part, affirmed in part.



         Neil Auwarter, 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, Anthony Da Silva and Quisteen S.

Shum, Deputy Attorneys General, for Plaintiff and Respondent.
       Alexander Christopher Cole II entered a negotiated guilty plea to assault with

intent to commit sexual penetration (Pen. Code, § 220, subd. (a))1 and assault by means

of force likely to cause great bodily injury (§ 245, subd. (a)(1)). The court placed Cole

on probation for five years with 365 days of jail custody to be served in work furlough.

Eleven months after sentencing, Cole violated his probation by leaving the country

without permission. The court revoked probation and sentenced Cole to prison for five

years, but suspended execution of the sentence and reinstated probation with an

additional 365 days of jail custody. Eighteen months later, Cole violated probation a

second time by failing to complete sex offender training. The court revoked probation

and executed the previously suspended five-year prison sentence.

       Cole appeals, contending the court's award of victim restitution to the San Diego

Police Department (SDPD) under section 1202.4, for the cost of Cole's forensic

examination, is not permitted. He further contends the award of restitution to the SDPD

under section 1203.1h, subdivision (b), for the cost of the victim's forensic examination,

is not permitted because the court did not consider Cole's ability to pay.2 We reverse the

order requiring Cole to pay $400 in restitution for his forensic examination, and affirm

the order requiring him to pay $850 in restitution for the victim's examination.



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

2       In his opening brief, Cole also claimed that in pronouncing his sentence the trial
court never awarded victim restitution, and the award for restitution reflected in the
minutes and abstract of judgment was a clerical error. However, when the People pointed
out in their brief that the court had in fact ordered victim restitution as a condition of
granting probation at the sentencing hearing, Cole withdrew that claim.
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                                               I

                                            FACTS

       On December 3, 2007, at approximately 2:00 a.m., Cole sexually assaulted "Jane

Doe" outside her home in Pacific Beach. The assault was interrupted when Isaac Mendez

came out of a nearby home, after hearing screams, to see what was happening. Cole

pushed Mendez and began swinging a motorcycle helmet at him. Mendez tried to run,

but Cole chased him and struck him with the helmet.

                                               II

                                        DISCUSSION

A.     Restitution for Cole's Forensic Examination

       Cole contends that the court's $400 restitution award to the SDPD for the cost of

his forensic examination was not authorized because the SDPD was not a direct victim of

the crime and the restitution award was not otherwise authorized. The People concede

the point. We accept the concession.

       The statute under which the court awarded the SDPD restitution for the cost of

Cole's forensic examination provides in relevant part: "[I]n every case in which a victim

has suffered economic loss as a result of the defendant's conduct, the court shall require

that the defendant make restitution to the victim or victims in an amount established by

court order, based on the amount of loss claimed by the victim or victims or any other

showing to the court." (§ 1202.4, subd. (f).) For purposes of this statute, "victim"

includes "[a] corporation, business trust, estate, trust, partnership, association, joint

venture, government, governmental subdivision, agency, or instrumentality, or any other

                                               3
legal or commercial entity when that entity is a direct victim of a crime." (§ 1202.4,

subd. (k)(2), italics added.) Expenses incurred by a governmental entity for the

investigation or prosecution of a crime do not render the government a direct victim of

the crime. (People v. Martinez (2005) 36 Cal.4th 384, 393; People v. Torres (1997) 59

Cal.App.4th 1, 4-5.) Here, the SDPD was not a direct victim of the crime; instead, the

costs incurred were for the investigation of a crime. Thus, the $400 restitution award was

not authorized.

B.     Restitution for Jane Doe's Forensic Examination

       Cole contends the $850 restitution award to the SDPD for the cost of the forensic

examination of Jane Doe was improper because the court never considered his ability to

pay, as required by statute. We disagree, for two reasons.

       1.      Forfeiture of Objection to Ability to Pay Restitution

       The People argue that Cole forfeited the right to challenge his ability to pay the

$850 restitution award by failing to object in the trial court. Cole counters that his failure

to object at sentencing does not preclude him from raising the issue on appeal because the

plain language of the statute makes a finding of ability to pay a condition precedent to

reimbursement. We agree with the People.

       We begin by setting out the operative portion of section 1203.1h:

            "If the court determines that the defendant has the ability to pay all
            or part of the cost of the medical examination, the court may set the
            amount to be reimbursed and order the defendant to pay that sum to
            the law enforcement agency, county, or local governmental agency,
            in the manner in which the court believes reasonable and compatible
            with the defendant's financial ability." (§ 1203.1h, subd. (b), italics
            added.)

                                               4
Cole is thus correct that the statute requires a trial court to determine a defendant's ability to pay

before awarding restitution for a victim's forensic examination fee. That does not mean,

however, that the issue of the ability to pay need not be raised in the trial court in order to

preserve the issue for appeal.

       "As a general rule, only 'claims properly raised and preserved by the parties are

reviewable on appeal.' " (People v. Smith (2001) 24 Cal.4th 849, 852.) A narrow

exception to the general forfeiture rule applies to " 'obvious legal errors at sentencing that

are correctable without referring to factual findings in the record or remanding for further

findings.' " (People v. Stowell (2003) 31 Cal.4th 1107, 1113.) The "appropriateness of a

restitution fine is fact specific," however, and "as a matter of fairness to the People, a

defendant should not be permitted to contest for the first time on appeal the sufficiency of

the record to support his ability to pay the fine." (People v. Gibson (1994) 27

Cal.App.4th 1466, 1468.) Thus, a defendant "cannot complain for the first time on

appeal of restitution fines imposed without findings or evidence of ability to pay" them.

(People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.) "Since [Cole] did not raise the

issue in the trial court, we reject his contention that the [restitution award] must be

reversed because the court did not make a finding of [his] ability to pay [it], and nothing

in the record shows he had the ability to pay." (People v. Crittle (2007) 154 Cal.App.4th

368, 371.)

       Moreover, our Supreme Court recently rejected an argument similar to Cole's in

People v. McCullough (2013) 56 Cal.4th 589, where it held that a defendant cannot

challenge for the first time on appeal an award of a booking fee for lack of substantial
                                                   5
evidence of the defendant's ability to pay. The statute at issue in McCullough "provide[d]

that '[i]f the person has the ability to pay, a judgment of conviction shall contain an order

for payment of ' the booking fee." (Id. at p. 592, quoting Gov. Code, § 29550.2,

subd. (a).) The statute at issue here has substantially similar language: "If the court

determines that the defendant has the ability to pay all or part of the cost of the medical

examination, the court may set the amount to be reimbursed and order the defendant to

pay that sum . . . ." (§ 1203.1h, subd. (b).) Also here, as in McCullough, the trial court

did not make an express determination of the defendant's ability to pay, and the defendant

failed to object at the time the court imposed the fee. (McCullough, at p. 591.)

Accordingly, Cole, like the defendant in McCullough, forfeited his right to raise the

ability-to-pay issue on appeal. (Id. at pp. 591, 599.)

       Furthermore, not only did Cole fail to raise the issue below, he affirmatively

accepted probation on the terms of the order granting probation, which included the

condition that he pay restitution for the forensic examination. Both the proposed order

granting probation and the probation report, which were provided to Cole before

sentencing, included the restitution fee as a condition of probation. The court gave Cole

ample opportunity to raise the issue of his ability to pay when it asked if he accepted

probation on the terms provided. If Cole was unable to pay the restitution fee, he should

have said so when he was granted probation and not waited to raise the issue for the first

time on appeal.




                                              6
       2.     Implied Finding of Ability to Pay Supported by Substantial Evidence

       The People argue that even if Cole's objection was properly preserved for appeal,

the trial court need not have made an express finding of his ability to pay the $850

restitution award because the court implicitly found Cole had the ability to pay, and this

finding is supported by substantial evidence. Cole counters the award "should be stricken

for lack of a finding of [his] ability to pay." Again, we agree with the People.

       As noted earlier, the plain language of section 1203.1h, subdivision (b), required

the court determine the defendant's ability to pay before awarding restitution for a

victim's examination fee. Where a statute requires a finding of ability to pay, we may

imply such a finding as long as it is supported by substantial evidence. (See, e.g., People

v. Phillips (1994) 25 Cal.App.4th 62, 71, 76 [implied finding of defendant's ability to pay

attorney fees and costs of probation supported by substantial evidence]; People v. Staley

(1992) 10 Cal.App.4th 782, 785-786 [Health & Saf. Code, § 11372.7, subd. (a), which

has similar ability-to-pay language, does not require an express finding of ability to pay;

ability to pay can be implied]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836-

1837 [express finding of ability to pay restitution fine not required; implied finding

sufficient if supported by record].) Substantial evidence is "evidence that is reasonable,

credible, and of solid value" from which a trier of fact reasonably could make a finding.

(People v. Lindberg (2008) 45 Cal.4th 1, 27.) A probation report may constitute

substantial evidence of a defendant's ability to pay restitution. (See, e.g., People v.

Ramirez (1995) 39 Cal.App.4th 1369, 1377; Staley, at p. 786; People v. Hartley (1984)

163 Cal.App.3d 126, 130 & fn. 3.)

                                              7
       Here, the record contains substantial evidence to support an implied finding of an

ability to pay. The probation report stated Cole was a recruiter in the Navy, where he had

worked for about 10 years, and earned the rank of E-6. His monthly income was $2,600,

and his monthly expenses were $2,000. He owed $12,000 on his motorcycle and car, had

some money saved in the bank, and owned a property in Texas with his siblings. Further,

Cole described his financial situation to the probation officer as "good." The trial court

signed the probation report, stating that it read and considered the report. During

sentencing, the court stated that it had considered Cole's job, status, and rank in the Navy.

Cole did not assert he was unable to pay the $850 restitution award — in fact, he

accepted the terms of probation, which included the condition that he pay the award —

and nothing in the record indicates he does not have the ability to pay it. Thus, we

conclude the court's implied finding of Cole's ability to pay the award is supported by

substantial evidence.

       Cole contends this court's prior decision in People v. Wardlow (1991) 227

Cal.App.3d 360 requires reversal of the order that he pay $850 in restitution for Jane

Doe's examination. We disagree. Wardlow is distinguishable because in that case there

was no evidence of the amount that law enforcement incurred in performing the

examination, and the record did not support an inference the trial court had made a

determination, express or implied, on the defendant's ability to pay. (Id. at pp. 371-372 &

fn. 7.) Here, by contrast, the record contains evidence of the cost of the examination, and

it supports the trial court's implied finding of Cole's ability to pay.



                                               8
                                      DISPOSITION

       The order requiring Cole to pay $400 in restitution for his forensic examination is

reversed. The order requiring Cole to pay $850 in restitution for the victim's forensic

examination is affirmed. Upon issuance of the remittitur, the trial court shall prepare an

amended abstract of judgment eliminating the $400 restitution award, and shall forward a

certified copy of the amended abstract to the Department of Corrections and

Rehabilitation.



                                                                                 IRION, J.

WE CONCUR:



             BENKE, Acting P. J.



                       AARON, J.




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