People v. Valtakis

• Decision Date: 30 January 2003
• Docket Number: No. A096508.,A096508.
• Citation: 130 Cal.Rptr.2d 133,105 Cal.App.4th 1066
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wilfred Carl VALTAKIS, Defendant and Appellant.

130 Cal.Rptr.2d 133

105 Cal.App.4th 1066

The PEOPLE, Plaintiff and Respondent, v. Wilfred Carl VALTAKIS, Defendant and Appellant.

No. A096508.

Court of Appeal, First District, Division 2.

January 30, 2003.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Christopher J. Wei, Deputy Attorney General, for Plaintiff and Respondent.

Bruce S. Wiener, under appointment by the Court of Appeal, for Defendant and Appellant.

LAMBDEN, J.

We hold that a defendant's failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b¹ waives the claim on appeal, consistent with the general waiver rules of People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802 (Welch) and People v. Scott (1994) 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Scott).

Background

Wilfred Carl Valtakis entered a negotiated plea of no contest to one count of LSD possession for sale (Health & Saf. Code, § 11378) in return for dismissal of a second felony count (id, § 11377, subd. (a)) with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754,159 Cal.Rptr. 696, 602 P.2d 396), dismissal of a second case, and probation. The plea entry form included a provision, initialed by Valtakis, acknowledging, "In addition to other penalties that may be ordered by the Court, I will be subjected to fines that may vary in amount from $10.00 to $20,000.00." The hearing was held on August 7, 2001, and sentencing was continued to October 2 to allow for a probation interview and report.

The report recommended a restitution fine of $200 (Pen.Code, § 1202.4), a drug lab fee of $50 (Health & Saf.Code, § 11372.5), and a probation fee of $250 (Pen.Code, § 1203.1). The report contained no determination of ability to pay and no advisement of a right to a separate hearing on that issue. It noted in the offense summary, however, that Valtakis had $255 in cash on him, plus 209 "hits" of LSD and three vials of liquid LSD, when his residence was searched. It also recited, as "collateral information," that Valtakis said he had not regularly used LSD himself but supplied it to friends, that he had since moved to Susanville with his mother, who worked as a correctional officer for the California Department of Corrections, and that he was attending Lassen Community College in an effort to obtain a certificate in steam power operations.

At sentencing, the 22-year-old Valtakis represented to the court, through counsel, that he remained enrolled in college, had "straightened out his life substantially" since the offense, was working part-time for the H.L. Power Company, and had gotten "excellent recommendations" from the college and the company.

The court, having considered the report and comments of counsel, suspended imposition of sentence and placed Valtakis on three years' probation conditioned on his serving 180 days in jail (stayed until January 2002 to allow completion of his school semester), seeking or maintaining full-time employment and/or educational training, and paying fees of $135 (Health & Saf. Code, § 11372.5) and $405 (id., § 11372.7). Valtakis was also ordered to pay the costs of any drug or alcohol testing, to provide any financial information requested by probation and, although "not part of his probationary grant," to pay a probation service fee of $250.

Neither Valtakis nor his trial counsel objected to any of the fees below. On this appeal, Valtakis assails the probation fee of $250 as imposed without compliance with section 1203.1b, and he asks that we strike it. The People urge that any noncompliance is waived for purposes of appeal by the failure to object below and that the record supports his ability to pay the one-time fee in any event. We hold that noncompliance is waived.

Discussion

Section 1203.1, subdivision (a), authorizes a court to impose fines when it suspends the imposition or execution of sentence and grants probation, and section 1203.1b specifically authorizes the recoupment of certain costs incurred for probation and the preparation of preplea or presentence investigations and reports on the defendant's amenability to probation. As amended by 1995 legislation (Stats. 1995, ch. 36, § 1, pp. 109-110), the section requires determinations of amount and ability to pay, first by the probation officer, and, unless the defendant makes "a knowing and intelligent waiver" after notice of the right from the probation officer, a separate evidentiary hearing and determination of those questions by the court.²

Valtakis notes that while the probation officer in this case recommended in the presentencing report that a $250 fee be imposed, the officer made no express finding of ability to pay and gave no notice of the right to a separate hearing by the court; further, the court did not hold a separate hearing or make its own determinations. Finally, he urges, the lack of notice of his right to a court determination forecloses any finding of a knowing and intelligent waiver of the right. Thus he urges that the fee was "wrongfully imposed" and "should be stricken from the probation order."

Valtakis relies solely on the statutory requirements. Thus, for example, while he complains of having no statutory notice of his right to a court determination, he does not complain that he lacked due process notice, and with the fee and amount specified in the report in advance of sentencing, this would be a very difficult argument to make (People v. Zuniga (1996) 46 Cal.App.4th 81, 84, 53 Cal.Rptr.2d 557).³

Is the statutory claim waived on appeal for failure to object anytime below? Settled case law precedent indicates that it is. In its 1993 decision in Welch, our Supreme Court overruled contrary precedent to hold that conditions of probation, unless objected to when imposed at sentencing, cannot be later challenged on appeal (Welch, supra, at pp. 232-237, 19 Cal. Rptr.2d 520, 851 P.2d 802), and cases building on Welch have uniformly held that defendants likewise cannot complain for the first time on appeal of restitution fines imposed without findings or evidence of ability to pay (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469, 33 Cal. Rptr.2d 217; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395, 44 Cal. Rptr.2d 501), even when characterized as unauthorized due to legal error (People v. Forshay (1995) 39 Cal.App.4th 686, 689-690, 46 Cal.Rptr.2d 116; People v. Gillard (1997) 57 Cal.App.4th 136, 165, fn. 18, 66 Cal.Rptr.2d 790).

The same holds true as a more general principle of sentencing under the 1994 decision in Scott, which held that a defendant's failure to object waives claims of error in the exercise of sentencing discretion and statement of reasons required by statute and rule (Scott, supra, 9 Cal.4th at pp. 351-356, 36 Cal.Rptr.2d 627, 885 P.2d 1040). Scott clarified what claims may be beyond the waiver rule as unauthorized: "[A] sentence is generally `unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is `clear and correctable' independent of any factual issues presented by the record at sentencing." (Id. at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) That is not the case here, for a probation fee could have been lawfully imposed had an ability to pay appeared, a clearly fact-bound determination. "In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner" (ibid.), which is exactly the claim here: the probation fees, otherwise permitted, were procedurally flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of evidence that the defendant had the ability to pay). The unauthorized-sentence exception does not apply. (Cf. People v. Middleton (1997) 52 Cal.App.4th 19, 37, 60 Cal.Rptr .2d 366.)

Recently, our Supreme Court applied the waiver doctrine of Welch and Scott to hold that the People, no less than defendants, are barred from seeking correction of a sentence for the first time on appeal— notably, omissions of mandatory restitution fines (§§ 1202.4, 1202.45)—where they have failed to object at sentencing. (People v. Tillman (2000) 22 Cal.4th 300, 302-303, 92 Cal.Rptr.2d 741, 992 P.2d 1109 (Tillman).) This is consistent with prior precedent that a defendant seeking to set aside a plea for failure to advise him or her of restitution fine consequences waives any such claim on appeal unless he or she objected at or before sentencing and can show prejudice. (People v. Walker (1991) 54 Cal.3d 1013, 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

That precedent compels the conclusion that failure to object in the trial court to statutory error in the imposition of a probation fee under section 1203.1b waives the matter for purposes of appeal.

For ms contrary view, Valtakis cites the statutory language that "[t]he 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," and that "[t]he 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." (§ 1203.1b, subd. (a); fn. 2, ante.) Without notice, he reasons, one cannot intelligently waive the right and therefore must be able to assert it for the first time on appeal. We disagree. The last quoted sentence, standing alone, is arguably ambiguous enough to allow his interpretation, for it might refer to waiver in the trial court or might also encompass waiver on appeal. But, observing our duty to avoid an absurd construction whenever...