1 Filed 10/23/13 P. v. Stevenson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta)

----

THE PEOPLE, Plaintiff and Respondent,

v. TONY ROEY STEVENSON, Defendant and Appellant. C070950 (Super. Ct. No. 10F5254)

A jury found defendant Tony Roey Stevenson guilty of insurance fraud (Pen. Code, § 550, subd. (b)(1)), unl awful conduct (making a false insurance claim) (Ins. Code, § 1871.4, subd. (a)(1)), and gr and theft (Pen. Code, § 487, subd. (a)). Imposition of sentence was suspended for five years and defendant was placed on probation for five years on the condition, among others, that he serve 180 days’ incarceration. He was ordered to make restitution to the victim in the amount of $19,438. 17 plus a 15 percent administration fee and to pa y a $600 restitution fine (Pen . Code, § 1202.4); a $600 restitution fine, suspended unless probatio n is revoked (Pen. Code, § 1202.44); a $7602 fine (Pen. Code, § 672), incl uding penalty assessments; a $120 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)); a $90 court facilities assessment (Gov. Code, § 70373); a $128 booking fee (Gov. Code, § 29550.2); a nd a probation supervis ion fee of $50 per month (Pen. Code, § 1203.1b). On appeal, defendant contends (1) the trial court erred by imposing the booking and probation fees without dete rmining his ability to pay, a nd (2) alternatively, if the claim is forfeited by his tria l counsel’s failure to object to the fees, counsel rendered ineffective assistance. FACTS The facts of defendant’s offenses are not at issue and need not be set forth in this opinion. DISCUSSION
I Ability to Pay Fees Defendant contends the trial court e rred by imposing the bo oking and probation fees without determining his ability to pay. He argues th e trial court made no express finding of his ability to pay an d the evidence is in sufficient to support an implied finding of such ability. The Attorney General coun ters that defendant forfeited his claim by failing to object at the time the fees were imposed. We agree. ( People v. McCullough (2013) 56 Cal.4th 589 ( McCullough ).) Penal Code section 1203.1b, subdivision (a ) provides, in relevant part: “In any case in which a defendant is convicted of an offense and is the subj ect of any preplea or presentence investigation and report, whether or not probation superv ision is ordered by the court . . . the probation officer . . . sha ll make a determination of the ability of the defendant to pay all or a portion of the reasona ble cost . . . of conducting any presentence investigation and preparing an y presentence report made pursu ant to Section 1203 . . . .3 The probation officer shall in form the defendant that th e defendant is entitled to a hearing, that includes the right to counsel, in wh ich the court shall make a determination of the defendant's ability to pay and the payment amount.” Government Code section 29550.2, subdivisi on (a) provides, in relevant part, that a judgment of conviction shall include an orde r for payment of the booking fee “[i]f the person has the ability to pay.” Generally, sentencing determinations are not reviewable on appeal absent a timely objection. ( People v. Scott (1994) 9 Cal.4th 331, 353.) Our Supreme Court explained: “Although the court is required to impose se ntence in a lawful manner, counsel is charged with understanding, advocating, and cl arifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of re asons are easily prevented and corrected if called to the court's attention.” ( Ibid .) Consistent with this general rule, clai ms that fines were improperly imposed are forfeited if not raised in the trial court. (E.g., People v. Nelson (2011) 51 Cal.4th 198, 227 [failure to consider ability to pay Pen. Code, § 1202.4 restitution]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [P en. Code, § 1202.5, subd. (a) crime prevention fine]; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1076 [Pen. Code, § 1203.1b fee]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 -1469 [Gov. Code, former § 13967, subd. (a) restitution fine].) Defendant counters that the forfeiture rule is inapplicable, citing the Sixth Appellate District case of People v. Pacheco (2010) 187 Cal. App.4th 1392, 1397 ( Pacheco ), which McCullough disapproved in the context of the booking fee. ( McCullough , supra , 56 Cal.4th at p. 599 .) We consider defendant’s argument as it pertains to the monthly probation fees. Pacheco relied in turn on People v. Viray (2005) 134 Cal. App.4th 1186, 1217 ( Viray ) and People v. Lopez (2005) 129 Cal.App.4t h 1508, 1536-1537 ( Lopez ). Defendant’s reliance on this trilogy is misplaced.4 Lopez, the earliest case in the series, involved Penal Code section 987.8, subdivision (g)(2)(B), which prov ided: “Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reim burse the costs of his or her defense.” Lopez construed the statute to “require an expr ess finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney.” ( Lopez , supra , 129 Cal.App.4th at p. 1537.) Lopez is inapposite to this case , which involves no similar statutory provision. Viray , the next case to be decided, held “an appellate forfeiture [cannot] properly be predicated on the failure of a trial a ttorney to challenge an order concerning his own fees. It seems obvious to us that when a defenda nt’s attorney stands before the court asking for an order taking money from the clie nt and giving it to the attorney’s employer, the representation is burdened with a patent conflict of inte rest and cannot be relied upon to vicariously attribute counsel’s omissions to the client

. ” ( Viray , supra , 134 Cal.App.4th at p. 1215.) Nothing in Viray suggested or implied its excep tion to the rule of appellate forfeiture should be extended beyond its factual context of an attorney fee order. Pacheco , the last case in the trilogy, rejected the Attorney General’s argument that by failing to object in the trial court, th e defendant had forfeite d his objection to an attorney fee order. Pacheco explained, “We have already held that such claims do not require assertion in the court below to be preserved on appeal. [Citations to Viray and Lopez. ] Respondent offers nothing to convince us otherwise.” ( Pacheco , supra , 187 Cal.App.4th at p. 1397.) In this case, defendant does not claim his trial counsel was burdened with a conflict of interest analogou s to the one that underlay Viray and Pacheco . Thus, his reliance on those cases is misplaced. Defend ant has forfeited his challenge to the orders for payment of the booking fee and probation supervision fees.5 II Ineffective Assistance of Counsel Anticipating our finding of forfeiture, defendant contends his trial counsel’s failure to challenge the orders for payment of the booking and probation supervision fees constitutes ineffective assistan ce. We are not convinced. “ ‘ “[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘defic ient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, he must also show pr ejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reas onable probability that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been different. A reasonable probability is a prob ability sufficient to u ndermine confidence in the outcome.’ [Citations.]” [Citation.]’ [Citation.]” ( People v. Avena (1996) 13 Cal.4th 394, 418.) “ ‘ “[If] the record on appe al sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A clai m of ineffective assistan ce in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” ( People v. Mendoza Tello (1997) 15 Cal.4t h 264, 266-267 ( Mendoza Tello ).) In this case, defendant’s trial counsel was not asked to expl ain why he did not challenge the booking and proba tion fees. Defendant counters that, although the record is silent, this is a case in which there “ ‘ “simpl y could be no satisfact ory explanation.” ’ ” ( Mendoza Tello , supra , 15 Cal.4th at p. 266; see People v. Weaver (2001) 26 Cal.4th 876, 955.) We disagree. The probation report states that defenda nt, age 52, served in the United States Army from 1979 until hi s honorable discharge in 1982. Defendant reported “a long work6 history primarily in the field of security .” His most recent employment, with ESI Security for two years, was his longest with a single employer. He left the company in 2010 because the employer ha d limited his work hours. In his probation interview, defendant cl aimed to have been unemployed for the past two years and to have been “sofa-su rfing between his parent ’s home and homes of his friends for the last eight to nine months .” He reported a curre nt monthly pension in the amount of $259 from the Veterans Admini stration and claimed that, of that amount, $251 is returned to the Veterans Administration to cover past medical bills, leaving him $8 in disposable cash. He claimed to have e xpenses of $160 per month and stated he was seeking Social Security Disability benefits. The probation report states that defendant is “an amiable, fairly intelligent, middle aged man, who appears less than honest and accepts no re sponsibility for his choices. His stories and theories change the longer on e converses with him, so it is difficult to track an absolute and final response to any given question.” The report notes that defendant “has the resources and support ava ilable through his family and the Veteran’s Administration to assist in stabilizing his life yet he chooses to sofa-surf like an adolescent.” The probation report demonstrates that there could be a satisfactory explanation for trial counsel’s failure to object to th e booking and probation supervision fees. ( Mendoza Tello , supra , 15 Cal.4th at p. 266.) The probation officer assessed that defendant “appears less than honest.” Tr ial counsel could have reached the same conclusion. Defendant’s claim that he spen ds $160 per month while having just $8 per month in disposable cash supports an infere nce that his portrayal of his financial circumstances is less than honest. His un disclosed resort to “resources and support available through his family” could account at least in part for the seemingly excessive spending. Trial counsel could have discov ered that defendant’s ability to pay the disputed fines is not as limited as he has port rayed it, and that an objection on the ground7 of inability to pay would have been futile. The matter is best addressed in habeas corpus proceedings. DISPOSITION The judgment is affirmed.

RAYE , P. J.

We concur:

HULL , J.

MAURO , J.