Filed 6/21/13 P. v. Harder CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                C070967

                   Plaintiff and Respondent,                                (Super. Ct. No. CRF10002646)

         v.

STEPHEN EUGENE HARDER,

                   Defendant and Appellant.




         Convicted of workers’ compensation fraud, defendant Stephen Eugene Harder
appeals, claiming various errors with respect to the fees, fines, and costs the trial court
imposed in granting him probation. In the event we find these claims of error forfeited
for failure to raise them in the trial court, defendant contends his trial attorney was
ineffective in failing to make these arguments.
         We conclude defendant’s trial attorney was not ineffective, but we order the trial
court to impose the $1,500 penalty assessment and the $35 processing fee as separate
orders and not as conditions of defendant’s probation as the trial court did here.
Otherwise, we find no error.




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                        FACTUAL AND PROCEDURAL BACKGROUND
       A jury found defendant guilty of five counts of workers’ compensation fraud.
(Ins. Code, § 1871.4.) The trial court suspended imposition of sentence and placed him
on five years’ probation subject to various terms and conditions set forth in a three-page
written probation order. At the sentencing hearing, the trial court gave the probation
order to defendant to sign, along with another document that purportedly “explain[ed]
how [the court] calculated the fines and fees that [we]re included in the conditions of
probation.” The court noted that it would “deal with other issues related to the trial”
“[o]nce the defendant signs the probation order” and subsequently noted that defendant
had “signed the order of probation in open court giving his consent to [the] terms of
probation.” Defendant signed the probation order immediately under a line that read, “I
hereby certify that I understand the terms and conditions of my probation as set forth in
this order.”
       As relevant here, the probation order provides as follows:
       “PROBATIONER SHALL:
       “[¶] . . . [¶]
       “7.     Pay $500 as a fine[1] plus $1,500 penalty assessment; plus a processing fee
of $35.
       “8.     (a) Pay $200 $240 as a restitution fine for each felony case and $100 $120
as a restitution fine for each misdemeanor case to the State Restitution Fund pursuant to




1       The People contend “it is a fair inference that the court imposed the $500 fine . . .
as part of [defendant]’s punishment” under subdivision (b) of Insurance Code
section 1871.4. Defendant does not disagree.

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PC § 1202.4(b); plus a processing fee of $20 for each felony case and a $10 processing
fee for each misdemeanor case.[2]
       “[¶] . . . [¶]
       “11.     Be confined in the Yolo County Jail for a period of 150 days with credit for
time served of . . . a total of 1 days as of 3/23/12 . . . ; probationer is not eligible for any
alternative custody program if residential treatment is also ordered . . . ; 90 days jail shall
be stayed.[3]
       “[¶] . . . [¶]
       “15.     Pay restitution in the sum of $159,801.74 covering losses related to the
charge(s) s/he stands convicted of, or in accordance with the plea agreement; plus interest
at the rate of 10% per annum; plus a collection fee of 10% of the restitution total; (PC
§ 1202.4).”
       Immediately following the three-page probation order in the clerk’s transcript is a
preprinted form that provides in pertinent part as follows:
                        “CRIMINAL CONVICTION ASSESSMENT
       “Defendant is hereby ordered to pay a court construction fee of $30 for each
misdemeanor and/or felony conviction (Section 70373(a)(1) GC).
       “[¶] . . . [¶]




2     The $200 and $100 amounts were lined through and the $240 and $120 amounts
were written in by hand.
3      The court stated on the record that defendant was subject to “a 60 day sentence
which could be served in any of the alternative programs offered by the Sheriff’s
Department, electronic monitoring or the Work Program, or any other programs that
they’re willing to offer” and later stated that, with the 1 day of credit, defendant had “59
days to serve in jail or on one of the alternative programs.”

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                                    “PROBATION FEE ORDER
       “As provided by law, defendant is hereby ordered to pay all applicable probation
fees that may include preparation of the pre-plea or pre-sentence report, supervision fee,
interstate compact request fee, jurisdictional transfer fee, GPS fee and electronic
monitoring fee.
       “[¶] . . . [¶]
                               “SENTENCING FEE ORDER
       “Defendant is ordered to pay a sentencing fee if committed to jail as a condition of
probation or if allowed to participate in the Work Alternative Program/Jail Work Release
Program in lieu of jail. The amount is established in the Yolo County Master Fee
Resolution & may be reduced by Yolo County Collection Services. (Yolo County Board
of Supervisors Resolution #93-78.5.)
                             “COURT SECURITY FEE ORDER
       “Defendant is hereby ordered to pay a court security fee of $40 per convicted
offense. (PC section 1465.8.)”
       We will refer to the foregoing as the untitled preprinted form. Following that form
is another that identifies the statutory basis of the penalty assessment (the $1,500)
attached to the $500 fine imposed. (This appears to be the other document the court
mentioned at the hearing as having been given to defendant.)
       Defendant did not object to any of the fines or fees imposed but filed a timely
notice of appeal.
                                        DISCUSSION
                                               I
                        Forfeiture And Ineffective Assistance Of Counsel
       On appeal, all of defendant’s arguments relate to the fines and fees the court
imposed as part of the grant of probation. As a threshold matter, the People contend
defendant forfeited all of his challenges to the fines and fees because he did not object in

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the trial court. Defendant contends that because “the court never made an oral
pronouncement of the fees, defense counsel never had any meaningful opportunity to
object.” In the alternative, defendant contends his trial counsel was ineffective in failing
to object.
       From the record, it appears defendant had an opportunity to object in the trial court
to at least some of the fines and fees the court imposed because the court gave defendant
the three-page probation order to sign at the sentencing hearing, and defendant signed the
form, acknowledging that he understood the terms and conditions of his probation as set
forth in the order. Thus, as to the fines and fees set forth in the three-page written
probation order, defendant’s failure to object to the order before he signed it resulted in
the forfeiture of the challenges he now seeks to raise to those fines and fees. (See, e.g.,
People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Nevertheless, because defendant
contends his attorney was ineffective in failing to take the opportunity to object, we will
have to consider the merits of defendant’s challenges in addressing his assertion of
ineffective assistance.
       As for the additional fees set forth in the untitled preprinted form (the $30 court
construction fee per conviction, the unspecified probation fees, the unspecified
sentencing fee, and the $40 court security fee per offense), there is nothing in the record
to show that defendant was provided with this form at or before the sentencing hearing
and nothing to show that he was otherwise advised of the terms contained on this form
when he was placed on probation. Thus, we agree with defendant that he never had a
meaningful opportunity to object to the fees set forth on this form, and therefore his
challenges to those fees (as opposed to those on the probation order itself) were not
forfeited. As to these fees, we will address the merits of defendant’s arguments without
the filter of his assertion of ineffective assistance.
       With this in mind, we turn to defendant’s arguments.



                                                5
                                             II
                                      Restitution Fine
       Defendant contends the $240 restitution fine the trial court imposed under Penal
Code section 1202.4, subdivision (b) “may have violated ex post facto principles.”4
Because defendant did not object to the amount of the restitution fine in the trial court,
this challenge to the fine was forfeited. Thus, the only question before us is whether his
trial attorney was ineffective in failing to object to the amount of the fine. We conclude
that he was not.
       At the time of defendant’s crimes, the minimum restitution fine was $200.
Effective January 1, 2012, the minimum was raised to $240. Consistent with this change,
the preprinted probation order the trial court used showed $200 for the amount of the
restitution fine, but that amount was lined out and $240 was written in its place.5
       Defendant contends that based on these facts “it may be reasonably assumed that
the court intended to impose the minimum restitution fine pursuant to Penal Code
section 1202.4, subdivision (b)” and thus the $240 restitution fine the court imposed
“would appear to violate ex post facto principles.” He contends his trial counsel was
ineffective because he “raised no objection to [a fine] which violated the ex post facto
clause.”




4      We disagree with defendant that the trial court imposed a $240 restitution fine for
each of his five convictions. The probation order unambiguously provides that defendant
shall pay $240 as a restitution fine “for each felony case.” (Italics added.) The order
does not provide for a separate fine for each charge or conviction. Here, there was only
one felony case and therefore only one $240 restitution fine.
5      A similar change was made to the amount of the restitution fine for a misdemeanor
($100 to $120), even though that amount did not apply to defendant because his was a
felony case.

                                              6
         As defendant’s varying formulations of his argument show, the $240 restitution
fine the court imposed did not necessarily violate ex post facto principles. The $240
amount was within the statutory range that applied to defendant ($200 to $10,000); thus,
the court could have imposed that amount even if defendant’s trial counsel had raised the
issue at the sentencing hearing. We also do not agree that on this record the court
necessarily intended to impose only the minimum applicable restitution fine and had
defense counsel advised the court that the minimum applicable to defendant was $200,
rather than $240, the court likely would have imposed the lesser amount. The trial court
ordered defendant to pay over $159,000 in restitution and there was nothing in the record
showing that the court had any intention of giving defendant a break as to the other fines
by imposing only the minimum. Moreover, the record is not clear that counsel had no
tactical reason to refrain from objecting. Calling attention to the minimum fine could
have caused the trial court to increase the fine. On this record, defense counsel was not
deficient for failing to object to the imposition of the $240 restitution fine.
                                               III
                              Fines As Conditions Of Probation
         Defendant next contends the trial court erred in ordering the various fees and fines
-- except for the restitution fine -- as conditions of probation. Again, because defendant
did not raise this argument in the trial court, this challenge was forfeited, and the only
question before us is whether his trial attorney was ineffective in failing to object on this
basis.
         In People v. Hart (1998) 65 Cal.App.4th 902, this court noted that while “orders
for restitution and restitution fines . . . are statutorily required to be included as conditions
of probation,” some other fees and costs cannot be imposed as conditions of probation.
(Id. at p. 907.) Here, defendant asserts it was error for the trial court to impose the $500
fine, $1,500 penalty assessment, and $35 processing fee contained in the probation order
as conditions of probation. He further contends it was error for the trial court to impose

                                               7
the court construction fee, the court security fee, the sentencing fee, and the probation
costs contained in the untitled preprinted form as conditions of probation, although
defendant asserts that “the record is not clear as to whether these fees and fines were
included as conditions of probation.”
       Dealing first with the fees and costs contained in the untitled preprinted form,
defendant asserts only that the court erred if it intended to impose these fees and costs as
conditions of probation, but he cannot show that the court had this intention, nor do we
have any reason to believe that the court did. In the absence of any reason to believe the
court imposed these fees and costs as conditions of probation, defendant has failed to
show that his trial attorney was ineffective for failing to object to these fees and costs on
this basis in the trial court.
       Turning to the $500 fine, $1,500 penalty assessment, and $35 processing fee
contained in the probation order, the People concede that the penalty assessment and the
processing fee should not have been imposed as conditions of probation because they are
collateral to defendant’s crime and punishment. (See, e.g., People v. Kim (2011) 193
Cal.App.4th 836, 842-843.) They further contend, however, that the $500 fine could be
imposed as a condition of probation because it was part of defendant’s punishment. We
agree. As to the remaining assessment and fee, we accept the People’s concession. But
we do not find counsel deficient for failing to object to the inclusion of the $1,500
penalty assessment and the $35 processing fee as conditions of probation because both
could have been imposed as separate orders. But because they should be listed as
separate orders and not conditions of probation, we direct the trial court to delete the
$1,500 penalty assessment and the $35 processing fee as conditions of probation and
instead impose them as separate orders.




                                              8
                                             IV
                       Lack Of Oral Pronouncement Of Fees And Fines
       Relying on People v. Zackery (2007) 147 Cal.App.4th 380, defendant contends
that with the exception of the victim restitution the court ordered (which the court
mentioned on the record), all of the fees and fines must be stricken because the court did
not orally pronounce them. Defendant is mistaken. In Zackery, this court discussed “the
obligation of a trial court clerk to accurately record the sentence pronounced by the judge
in a criminal proceeding.” (Id. at p. 382, italics added.) Here, no sentence was
pronounced because defendant was placed on probation. By definition, probation is “the
suspension of the imposition . . . of a sentence and the order of conditional and revocable
release in the community under the supervision of a probation officer.”6 (Pen. Code,
§ 1203, subd. (a), italics added.)
       Defendant points to no authority requiring fees and fines imposed as part of a
grant of probation to be pronounced orally on the record, as opposed to being included in
a written order of probation presented to the defendant at the sentencing hearing, which is
what happened here. In the absence of such authority, defendant has failed to show any
error on this point.
                                             V
               Imposition Of Fees Without Determination Of Ability To Pay
       Defendant contends the trial court erred in ordering him to pay a $35 processing
fee and unspecified probation costs without first determining his ability to pay.
       The $35 processing fee appeared on the probation order that defendant signed at
the sentencing hearing. Because defendant had the opportunity to challenge this fee in
the trial court but did not do so, his challenge was forfeited, and the only question before



6      Probation can also be granted by imposing sentence but suspending its execution
(see Pen. Code, § 1203, subd. (a)), but that is not what the trial court did here.

                                              9
us is whether his trial attorney was ineffective in failing to object to this fee on this basis.
On the appellate record before us, defendant has not shown that his trial counsel could
have had no legitimate reason for not insisting on a determination of defendant’s ability
to pay a $35 fee, nor has defendant shown a reasonable probability that if his attorney had
challenged this fee on this basis a better result would have followed. Accordingly, any
relief for ineffective assistance relating to this fee cannot be sought through direct appeal.
(See, e.g., People v. Pope (1979) 23 Cal.3d 412, 426.)
       As for the unspecified probation costs, the order to pay those costs appeared on the
untitled preprinted form, and because defendant never had a meaningful opportunity to
object to the fees set forth on that form, his challenges to the probation costs were not
forfeited. Nevertheless, we find no merit in his argument on this point. Defendant
acknowledges that the statutory basis for the probation fees was Penal Code
section 1203.1b. That statute provides in pertinent part as follows:
       “(a) [I]n any case in which a defendant is granted probation . . . , the probation
officer, or his or her authorized representative, taking into account any amount that the
defendant is ordered to pay in fines, assessments, and restitution, 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, . . . [and] of conducting any
presentence investigation and preparing any presentence report made pursuant to
Section 1203 . . . . The reasonable cost of these services and of probation supervision . . .
shall not exceed the amount determined to be the actual average cost thereof. A payment
schedule for the reimbursement of the costs of . . . presentence investigations based on
income shall be developed by the probation department of each county and approved by
the presiding judge of the superior court. 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

                                               10
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 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.
       “(b) 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.”
       Here, the trial court ordered defendant to “pay all applicable probation fees” “[a]s
provided by law.” Unlike defendant, we do not understand this order to subvert the
procedures called for by Penal Code section 1203.1b, set forth above. Thus, it is for the
probation officer to determine in the first instance defendant’s ability to pay his probation
costs, and defendant is entitled to a court hearing on the probation officer’s determination
of his ability to pay before he is ordered to pay any particular amount for the costs of his
probation. Although the court’s probation fee order could have been more explicit on
this point, understood in this manner we find no error in it.
                                             VI
                                  Penal Code Section 654
       Defendant contends the $500 fine and $1,500 penalty assessment the trial court
imposed “may have been calculated based upon the multiple counts” that, in defendant’s
view, “resulted from a course of conduct incident to a single common objective.”



                                             11
Accordingly, defendant “submits that the court may have erred in failing to apply Penal
Code section 654 to the . . . penal fine which was imposed.”
       “We must indulge in every presumption to uphold a judgment, and it is
defendant’s burden on appeal to affirmatively demonstrate error -- it will not be
presumed.” (People v .Garcia (1987) 195 Cal.App.3d 191, 198.) The assertion that the
court may have erred because it may have failed to apply Penal Code section 654 does not
“affirmatively demonstrate error.” Accordingly, defendant has not carried his burden on
appeal.
                                     DISPOSITION
       Defendant’s convictions are affirmed, but the order granting probation is reversed
with respect to the $1,500 penalty assessment and the $35 processing fee only. The case
is remanded to the trial court with directions to impose the $1,500 penalty assessment and
the $35 processing fee as separate orders and not as conditions of defendant’s probation.



                                                      ROBIE         , Acting P. J.



We concur:



      MAURO           , J.



      DUARTE          , J.




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