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Failure to Object--Ability to Pay Claim

Does the failure to object to an order for payment of attorney fees, an order for payment of a criminal justice administration fee, and/or an order for payment of probation supervision fees forfeit a claim that the trial court erred in failing to make a finding of the defendant's ability to pay the amount in question?

Held: Appellate forfeiture rule applies to trial court's order for defendant to pay probation-related costs and attorney's fees, where there is no objection to order. Aguilar was convicted of inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a)); the court found he had a suffered a prior battery conviction within seven years (Pen. Code, 243; former 273.5, subd. (e), now subd. (f)). He was granted probation. Without objection, the court imposed fines and fees, including the cost of the presentence report, cost of probation supervision, booking fee, and payment of attorney's fees. On appeal, his challenge to the probation supervision fee was rejected. Held: Affirmed. As set forth in People v. Trujillo (2015) __ Cal.4th __ , section 1203.1b provides procedural requirements for advising defendant of his right to an ability to pay hearing and for obtaining a knowing waiver of that right. Section 987.8, subdivision (b) contains a procedure to determine whether a defendant should repay all or a portion of the costs of appointed counsel, including a hearing at which the defendant is entitled to be heard, present witnesses and documentary evidence, cross-examine adverse witnesses, discover evidence against him, and to a written statement of the court's findings. As set forth in Trujillo, the ability to raise denial of these rights on appeal is forfeited absent a timely objection to the court's order. Aguilar is not without recourse; during the probationary or conditional sentence period, he may seek modification of the order upon valid grounds.

The fact that the Legislature has decreed that orders for probation costs and attorney's fees are enforceable as civil judgments does not bar application of the appellate forfeiture rule. Aguilar also argued that the appellate forfeiture rule should not bar his appeal because orders for probation costs and attorney fees are enforceable as civil judgments, which are excepted to by law and thus appealable without contemporaneous objection (Code Civ. Proc., 647). The court disagreed. "That the Legislature has decreed the state shall enforce fee orders in the same manner as civil judgments does not remove a defendant's challenge to such orders from the criminal sentencing matrix in which it necessarily arises, and in which the Welch/Scott forfeiture rule governs." It is especially appropriate to apply the forfeiture rule in this case because Aguilar had two opportunities to object?when the court imposed the fees at sentencing and when he met with the probation officer to fill out financial forms upon which a determination of ability to pay would be based?he failed to do so on either occasion.

When imposing fees, trial court properly relied on county fee and payment schedules based on actual costs. Aguilar also argued that the order imposing probation costs and booking and attorney's fees violated due process because the record did not contain evidence or court findings as to the actual costs involved. The court disagreed. The booking fees were derived from a schedule adopted by the county board of supervisors based on actual cost data submitted by the sheriff. Probation-related costs are based on a payment schedule developed by the probation department in each county (see Pen. Code, 1203.1b, subd. (a), (h)), which must be based on the actual average costs of presentence investigation and probation supervision. As for attorney fees, the trial court was qualified to make an implied finding that the cost of counsel's services was in the amount ordered. (People v. Aguilar (2015) 60 Cal.4th 862 (S213571).) This case was decided on 1/12/2015.

Updated: 1/12/2015

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