Filed 6/30/15 P. v. Gunther 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067841
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12909771)
                   v.

LEROY NOBLE GUNTHER, JR.,                                                                OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
         Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Franson, J. and Peña, J.
          Defendant Leroy Noble Gunther, Jr., was convicted by no contest plea of
committing a lewd act upon a 14-year-old child when defendant was at least 10 years
older than the victim (Pen. Code, § 288, subd. (c)(1)).1 The trial court sentenced him to
two years in prison and imposed various fines and fees, including a $296 fee for the
presentence probation report pursuant to section 1203.1b. On appeal, defendant contends
remand is required because the trial court failed to determine his ability to pay the
presentence probation report fee. The People respond that defendant forfeited his claim
by failing to raise it below. The forfeiture issue has been resolved by the California
Supreme Court since the parties submitted their briefs in this case. Accordingly, we
affirm.
          Section 1203.1b sets forth the procedure a trial court must follow before it may
impose a fee for presentence probation costs. First, the court must order the defendant to
report to the probation officer, who will then determine the defendant’s ability to pay.
(§ 1203.1b, subd. (a).) After the probation officer determines the amount the defendant
can pay, the probation officer must inform the defendant that he is entitled to a hearing,
during which the court will determine the defendant’s ability to pay and the payment
amount. (Ibid.) Section 1203.1b entitles the defendant to representation by counsel
during this hearing. The defendant may waive his right to a hearing, but he must do so
knowingly and intelligently. (Ibid.) If the defendant fails to waive his right to the
hearing, the probation officer must refer the matter back to the trial court, and the trial
court will determine the defendant’s ability to pay. (§ 1203.1b, subd. (b).)
          It is now settled that a defendant who fails to challenge the imposition of fees
pursuant to section 1203.1b before the trial court forfeits the claim on appeal. In the
recent case of People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), the Supreme Court
stated: “Notwithstanding the statute’s procedural requirements, we believe to place the

1         All statutory references are to the Penal Code.


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burden on the defendant to assert noncompliance with section 1203.1b in the trial court as
a prerequisite to challenging the imposition of probation costs on appeal is appropriate.”
(Id. at p. 858.) The court explained: “Our reasoning in [People v. ]Scott [(1994) 9
Cal.4th 331] applies by analogy here. ‘Although the court is required to impose sentence
in a lawful manner, counsel is charged with understanding, advocating, and clarifying
permissible sentencing choices at the hearing. Routine defects in the court’s statement of
reasons are easily prevented and corrected if called to the court’s attention.’ (Scott,
supra, 9 Cal.4th at p. 353.) In the context of section 1203.1b, a defendant’s making or
failing to make a knowing and intelligent waiver occurs before the probation officer, off
the record and outside the sentencing court’s presence. Although the statute
contemplates that when the defendant fails to waive a court hearing, the probation officer
will refer the question of the defendant’s ability to pay probation costs to the court, the
defendant—or his or her counsel—is in a better position than the trial court to know
whether the defendant is in fact invoking the right to a court hearing. In Scott the
existence, per se, of procedural safeguards in the sentencing process, such as the right to
counsel and to present evidence and argument, did not prevent us from holding the
forfeiture rule should apply with respect to the trial court’s discretionary sentencing
choices. The same conclusion follows with respect to the imposition of the fees
challenged here.” (Trujillo, supra, 60 Cal.4th at p. 858, fn. omitted.)
       In reaching its conclusion, the California Supreme Court noted that important
constitutional rights are not at stake in this case. “Thus, unlike cases in which either
statute or case law requires an affirmative showing on the record of the knowing and
intelligent nature of a waiver, in this context defendant’s counsel is in the best position to
determine whether defendant has knowingly and intelligently waived the right to a court




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hearing. It follows that an appellate court is not well positioned to review this question in
the first instance.” (Trujillo, supra, 60 Cal.4th at p. 860.)2
       Based on Trujillo, we conclude defendant has forfeited his challenge to the trial
court’s imposition of probation report costs.
                                       DISPOSITION
       The judgment is affirmed.




2       The court noted, however, that a defendant raising this issue is not wholly without
recourse. The court set forth numerous methods by which a defendant could have this
issue addressed by the probation department or sentencing court. (See Trujillo, supra, 60
Cal.4th at pp. 860-861.)


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