IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A110007

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1 Filed 7/25/06 P. v. Miller CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. BRETT MILLER, Defendant and Appellant. A (San Francisco County Super. Ct. No ) Brett Miller appeals his conviction by jury verdict of one count of attempted robbery, (Pen. Code, 664, 212.5, subd. (c)) 1 two misdemeanor counts of unlawfully resisting an officer ( 148, subd. (a)(1)), and two misdemeanor counts of battery on an officer ( 243, subd. (b)). He contends the convictions of resisting an officer must be reversed because the same acts form the bases of the convictions for battery on an officer. He also contends the probation condition that he pay probation costs was error because it was imposed without a finding of ability to pay. DISCUSSION I. Resisting/Battery on an Officer Because appellant does not challenge the attempted robbery conviction, and because the People concede that the counts of resisting a police officer and battery on a police officer are based on the same conduct, only a brief factual recitation is necessary. 1 Unless otherwise indicated, all further section references are to the Penal Code. 1

2 The incident giving rise to the convictions began when appellant demanded money of two pedestrians walking in a commercial neighborhood. As they started to run away, appellant grabbed one of them firmly by the shoulders and pushed him into the street. These pedestrians escaped, appellant started to chase them, and a third pedestrian yelled at him to stop. Appellant then demanded money of the third pedestrian, who shouted to other passersby to call the police. Appellant and the third pedestrian scuffled, and the pedestrian sat on appellant until the police arrived. Two uniformed police officers responded. Appellant resisted their efforts to handcuff him by pulling his arms away and lifting his legs off the ground. He escaped the officers grasp, and as one officer grabbed him, he lost his balance, causing him and the officer to fall backwards onto a bench, with appellant landing on top of the officer. The second officer radioed for back-up. Appellant continued to struggle when the backup officers arrived. Eventually the officers were able to handcuff him. Given this factual scenario, and the fact the prosecutor never argued that the resisting and battery counts were based on different conduct, the People acknowledge that appellant s convictions for resisting an officer must be reversed. We agree. A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense based on the same act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) Resisting a police officer is a lesser included offense of battery on a police officer. (People v. Jones (1981) 119 Cal.App.3d 749, 755; People v. Perkins (1970) 9 Cal.App.3d 1048, 1051.) Here, appellant s same conduct-- struggling with the officers as they tried to apply handcuffs to him--constituted both the resisting and the battery. Therefore, his two convictions for resisting an officer, counts four and five, must be reversed. (See People v. Ortega (1998) 19 Cal.4th 686, 700.) II. Probation Costs Section , subdivision (a) authorizes a court to impose fines when it suspends the imposition or execution of sentence. Section b specifically authorizes the recoupment of certain costs incurred for probation and preparation of presentence investigation and reports on the defendant s amenability to probation. It also 2

3 requires a determination of amount and ability to pay, first by the probation officer, and a separate evidentiary hearing and determination of amount and ability by the court, unless the defendant makes a knowing and intelligent waiver after notice of these rights from the probation officer. 2 Here, the presentence report recommended that appellant pay, inter alia, up to $150 for the cost of the presentence investigation, as determined by the probation officer, and probation costs of $50 per month in a manner as determined by the probation officer. 2 Section b states, in pertinent part: (a) In any case in which a defendant is convicted of an offense and is the subject of any... presentence investigation and report... and in any case in which a defendant is granted probation... the probation officer... 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... of conducting any presentence investigation and preparing any presentence report.... [] The court shall order the defendant to appear before the probation officer... to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer... shall determine the amount of payment 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 [he] 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] 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] 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.... [] [] (d) If practicable, the court shall order or the probation officer shall set payments pursuant to subdivisions (a) and (b) to be made on a monthly basis. [] (e) The term ability to pay means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation... and shall include, but shall not be limited to, the defendant s: (1) Present financial position. (2) Reasonably discernible future financial position.... (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. (4) Any other factor or factors that may bear upon the defendant s financial capability to reimburse the county for the costs. 3

4 It also stated that appellant had been notified of his obligation to pay $50 per month in probation costs and was advised of his rights under section b. The report did not make any specific findings regarding appellant s ability to pay. At sentencing, the court, after announcing it had read the presentence report, set forth its tentative sentence, which included suspending execution of a 16-month prison sentence, and imposing payments of $150 for the cost of the presentence investigation and probation costs of $50 per month in a manner determined by the probation officer. The prosecutor objected to the tentative sentence, and sought instead suspension of imposition of sentence. When the prosecutor finished her objection, the court asked defense counsel if he had any objection. He replied, [s]ubmitted, and the court proceeded to impose a final sentence. Rather than following its tentative decision to suspend execution of sentence, it adhered to the prosecutor s request to suspend imposition of sentence, and placed appellant on three years probation. As conditions of probation he was to serve 12 months in county jail, less credit for time served, with release to a residential program deemed appropriate by the probation department for the remainder of his probation, undergo drug counseling during the first year of his residential program, and continue with counseling thereafter as the probation department deemed appropriate. The court ordered the same requirement of payment of $150 for the presentence report and payment of probation costs of $50 per month which it had announced in its tentative sentence. Appellant argues that imposition of the probation cost fee is invalid because the probation department did not determine his ability to pay, and the court did not hold a separate hearing or make its own determinations regarding his ability to pay. He further argues that his failure to object to imposition of the costs does not waive the issue. He also observes there is no evidence on the record to imply his ability to pay the probation costs. Generally, complaints about the manner in which a trial court makes or articulates its discretionary sentence choices cannot be raised for the first time on appeal. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, ; see also People v. Gonzalez (2003) 31 4

5 Cal.4th 745, 751.) Likewise, conditions of probation cannot be challenged on appeal unless objected to when sentence is imposed. (People v. Welch (1993) 5 Cal.4th 228, ) Division Two of this court addressed the application of these rules to imposition of section b probation fees in People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis). 3 In Valtakis, the presentence report recommended assessment of a $250 probation service fee, pursuant to section b, but the report contained no determination of the defendant s ability to pay the fee or advisement of a right to a separate hearing on the issue. (Valtakis, supra, 105 Cal.App.4th at p ) Without any objection from the defendant or his attorney, the sentencing court ordered payment of the fee. (Ibid.) On appeal the defendant contended imposition of the fee was error because the probation department and the trial court did not comply with the section b probation fee procedures; the probation officer made no express finding of his ability to pay and gave him no notice of the right to a separate court hearing; and the court did not hold a separate hearing or make its own determination; and thus, he could not have made a knowing and intelligent waiver of his right to a hearing because he lacked notice of the right. (Valtakis, supra, 105 Cal.App.4th at pp ) Valtakis held that section b, subdivision (a) s requirement of a knowing and intelligent waiver of a defendant s right to an ability-to-pay hearing is subject to the general rule that failure to raise the issue below waives any claim of error on appeal. (Valtakis, supra, 105 Cal.App.4th at pp , 1076.) It rejected the defendant s argument that its holding would render meaningless section b, subdivision (a) s provision that the defendant must knowingly and intelligently waive the right to a determination by the court of his ability to pay, because the context of the entire statute involves the procedures to be followed by the trial court in determining whether to hold a hearing on the ability to pay. (105 Cal.App.4th at p ) [T]he 1995 amending language [specifying a right to a separate hearing, notice of the right, and a knowing and 3 Although an order for payment of probation costs is customarily made at sentencing in the course of reciting the terms of probation, it is not in fact a condition of probation 5

6 intelligent waiver] appears designed to clarify that [the defendant s] acquiescence must now occur actively, not passively, and upon a knowing and intelligent waiver. [ ] [Additionally], the waiver language does not speak to appellate review. The context involves trial court procedures... and the Legislature was presumably aware of the longestablished principles exemplified in Welch and Scott... and that defendants, unless exercising their right to self-representation, enjoy the assistance of counsel, counsel who are familiar with the need to preserve claims of error by objection. (Id., at p ) Valtakis also observed that to construe section b, subdivision (a) s waiver language as abrogating the Welch and Scott rule that failure to object waives the claims of error on appeal would work results horribly at odds with the overarching cost conservation policy of section b, subdivision (a). (Valtakis, supra, 105 Cal.App.4th at p ) Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive. (Id., at p ) We agree with the reasoning and result of Valtakis and conclude appellant forfeited the right to raise any issue of noncompliance with section b on appeal by failing to raise it below. We also observe that, unlike the Valtakis defendant, appellant was informed by the probation department of his right to a hearing and other rights under section b prior to sentencing. Thus, we construe his silence at the sentencing hearing on the subjects of payment of probation costs, the amount and manner of payment, and his ability to pay, as implying he did not disagree with the probation report or believe there was a lack of compliance; and his silence may be construed as an implicit waiver of his right to a court determination of ability to pay and payment amount. but a separate order. (People v. Hart (1998) 65 Cal.App.4th 902, ) 6

7 Appellant asserts that People v. Butler (2003) 31 Cal.4th 1119 supports his contention that a defendant does not waive his right to challenge a failure of compliance with section b on appeal if he has not challenged imposition of probation costs below. On the contrary, we believe Butler reinforces our conclusion. Butler held that the defendant s failure to object at sentencing to the lack of evidence sufficient to find probable cause to order an HIV test did not preclude his raising the issue of insufficient evidence on appeal. (Butler, supra, 31 Cal.4th at p ) Butler observed, however, that its conclusion was controlled by the specific terms of the HIV testing statute and the general mandate that involuntary HIV testing was strictly limited by statute, and for this reason, nothing in our analysis should be construed to undermine the forfeiture rule of [Scott,] that absent timely objection sentencing determinations are not reviewable on appeal. (Id. at p. 1128, fn. 5.) In his concurring opinion, Justice Baxter, joined by Justice Chin, wrote separately only to make explicit what is implicit in the majority opinion. [ ] [D]espite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal.... This includes claims that the record fails to demonstrate the defendant s ability to pay a fine (e.g., People v. Valtakis...). (Id. at. p. 1130, italics in original; conc. opn. of Baxter, J.) Even if we did reach appellant s claim of error, we would hold it not reasonably probable that he would have obtained a more favorable result absent any statutory error of noncompliance. 4 (Valtakis, supra, 105 Cal.App.4th at p ) According to the presentence report, appellant is single and childless. He has a high school equivalency degree. He is a United States citizen and English is his primary language. Although unemployed and without any source of monthly income at the time the report was prepared, he had been employed in the past five years 25 percent to 74 percent of the time, with his most significant employment in landscaping work. Despite knowing appellant had an erratic employment history and a history of substance abuse, the 7

8 probation department nevertheless recommended imposition of the probation costs, impliedly determining he had the ability to pay them. Once he completed his jail term and entered the residential program, there was no apparent physical or personal limitation on his ability to be gainfully employed to such an extent as to earn $50 per month. On this record, there is no evident prejudice to justify a reversal of the fees or remand to assess appellant s financial circumstances as of sentencing. DISPOSITION The judgment is reversed as to counts four and five. In all other respects, the judgment is affirmed. Jones, P.J. We concur: Simons, J. Reardon, J.* *Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4 For this reason, we would reject appellant s claim in a footnote of violation of his Sixth Amendment right to competent counsel. We conclude it is not reasonably probable the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) 8