Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 1090290. Scott T. Steffen, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
A jury convicted Bart Richard Hughes (appellant) of possession of a fictitious or altered bill or check (Pen. Code, § 476) and receiving stolen property (§ 496, subd. (a)). The jury acquitted appellant of one count of possession of ammunition by a person prohibited from possession of a firearm (§ 12316, subd. (b)(1)). In a bifurcated proceeding, the trial court found four prior prison term allegations to be true. The trial court sentenced appellant to six years in state prison and imposed various fines.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, appellant contends the trial court erred: (1) when it failed to respond to a note from the jury and to give a unanimity instruction; and (2) when it improperly ordered appellant to pay $900 for the cost of preparing his probation report. We disagree and affirm. We agree, however, with appellant’s contention that the matter must be remanded for correction of the abstract of judgment, because the trial court failed to specify the statutory bases for the imposition of fines and fees.
FACTS
On the afternoon of April 5, 2005, police officer Jesse Garcia observed a vehicle without a front license plate. After making a U-turn, Garcia noticed that the rear license plate was missing as well. Garcia initiated a traffic stop and requested that the driver, whom he identified as appellant, produce his license and registration. As Garcia observed appellant go through his wallet, he noticed appellant pass over what appeared to be a driver’s license and identification card. The officer brought this observation to appellant’s attention, but appellant stated that the document “wasn’t” his license. Appellant then produced a driver’s license in his name.
Officer Garcia asked that appellant exit the vehicle. He then searched appellant’s wallet and found a driver’s license in the name of Russell Dean Greer. Inside the console of the vehicle, Garcia found a check made out to Russell Greer on the account of Blue Lagoon Pools. In the trunk of the vehicle, Garcia found an iPod media player, “some” cameras, a briefcase containing a stamp collection, and a single bullet.
The driver’s license with Greer’s name included Greer’s correct address, but the signature, license number, and photograph were not his. Greer did not know appellant. Greer was in possession of his driver’s license, which was shown, by photocopy, to the jury.
David Lagrimas and Salvador Becerra were co-owners of Blue Lagoon Custom Pool and Spa. Lagrimas testified that the signature on the company check in question was that of Becerra. But, he noted, the payee name of Russell Greer was typewritten as opposed to his practice of having the check computer-generated or handwritten. Lagrimas testified that, at the time the check was written, his business checks had “two stubs on the bottom.” His practice was to remove the lower stub, identify who the check was assigned to (either himself or Becerra), and then use the check or give Becerra the check and remaining stub in order to buy supplies while on the job. At times Becerra would buy the supplies; at other times, Becerra would sign the check and give it to an employee to do the same. Becerra would return the stub along with a receipt for the necessary supplies. Lagrimas gave the check in question, No. 2067, to Becerra somewhere around the 3d to the 9th of March of 2005. Lagrimas never received a receipt for check No. 2067, and he did not have any suppliers, employees, or work for anyone by the name of Russell Greer. Neither did he authorize the check as it was written.
Becerra testified that he was at Home Depot in March of 2005. When he came out of the store, he noticed that his truck was open and a jackhammer was missing. He later discovered that a blank, presigned business check was also missing. Becerra had not written the check to Russell Greer, nor had he authorized anyone else to do so.
DISCUSSION
1. Did the trial court err when it failed to give a unanimity instruction?
Appellant claims the trial court violated his right to a unanimous verdict when it mishandled a note sent by the jury during deliberations. Appellant contends, pursuant to section 1138, that the trial court should have provided a response to the jury’s note. Appellant further claims the trial court committed reversible error by failing to give, sua sponte, a unanimity instruction on count II. In the alternative, appellant contends he received ineffective assistance of counsel. We disagree.
A. Factual background
The information charged appellant in count I of possession of a fictitious or altered bill or check (§ 476) and in count II of receiving stolen property (§ 496, subd. (a)). The information did not identify what property was allegedly stolen, although both crimes were said to have occurred on or about April 5, 2005.
The trial court instructed the jury on count I, possessing a false or altered check with the intent to defraud. The trial court instructed on count II, receiving stolen property, but the instruction did not identify what property was allegedly stolen.
During closing, the prosecutor argued that the elements of count I, possession of an altered check, were shown by the facts that the owners of the business did not write the check, that the check was found in appellant’s console, and that appellant had a “phony” driver’s license in his wallet matching the name on the check.
The prosecutor then addressed count II, possession of stolen property, and asked the jury to consider the circumstantial evidence that the check was taken from Becerra’s vehicle, and the substantial evidence that the check was found in appellant’s vehicle in the name of Greer, the “[s]ame name that appears on the license.”
Defense counsel, in closing, identified count I, as “possessing a false check,” and argued that there was no evidence of guilty knowledge on appellant’s part. Instead, defense counsel argued, there was evidence of someone else’s fingerprint on the check, meaning that someone else handled it. As for count II, defense counsel, argued only and somewhat confusingly:
“And, again, the fingerprint that is on the second count of receiving—pardon me. There is the element. And, again, every one of these elements must be proved beyond a reasonable doubt. Not possible doubt or anything else like that, but reasonable doubt as defined to you by the judge. And that’s, again, that he knew that the property was stolen. There is no evidence, none that he knew. His reaction was exactly like anybody else when he was asked about the ID. That’s not mine. He didn’t try to hide it. [¶] If that’s the key to this evidence, then the only evidence we have is that he was open and everything else about it. He opened his wallet when the officer asked him. It’s not mine. When I asked the officer, he wasn’t trying to hide it. That’s the testimony. Not whether I believe it to be true or anybody else believes it to be true. That’s what you have to—to rely on is the evidence given to you by the police officers that testified here.”
The prosecutor, in rebuttal, did not respond to this aspect of defense counsel’s closing argument.
During deliberations, the jury submitted a note to the trial court which stated: “Is Count II does that specify the check or drivers license which charge in count II [sic]?” In response, the trial court summoned the prosecutor and defense counsel and informed them of the note. The prosecutor asked, “What’s the charging language say?” Immediately thereafter, the trial court stated, “Well, I just got another note that says: We’ve figured it out. We do not need an answer.” No objection was made and no further discussion was had on either of the jury’s notes. The jury returned a guilty verdict on both counts soon after.
B. Section 1138
Appellant first alleges that the trial court’s lack of response to the jury’s note was error, because section 1138 requires the trial court to provide the jury with any desired information “on any point of law arising in the case.” We conclude the issue was not preserved for presentation on appeal due to defense counsel’s failure to object. In any event, the claim is meritless.
Section 1138 provides:
“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138. (People v. Kageler (1973) 32 Cal.App.3d 738, 746.) In People v. Roldan (2005) 35 Cal.4th 646, the jury, deliberating on the issue of penalty, requested a copy of the four questions asked by the judge of each juror during jury selection. The trial court, in the presence of the defendant, defense counsel, and the prosecutor, read the questions to the jury. The Supreme Court found the issue of section 1138 compliance waived because defense counsel failed to make an objection and did not request the court to follow any other course of conduct. (Roldan, at pp. 728-729.) The Supreme Court in People v. Boyette (2002) 29 Cal.4th 381 reached a similar conclusion in an analogous situation in which the trial court declined to respond to a jury’s note pursuant to section 1138. (Boyette, at p. 430.) Here, too, appellant waived any objection to the trial court’s lack of response to the jury’s notes.
Even if we overlook the absence of an objection, appellant’s claim is without merit. Although appellant contends the lack of response by the trial court left the jury confused, his claim is pure speculation. The jury specifically stated that it was no longer confused and did not need clarification. As for the second note, appellant does not explain what type of probing the trial court should have done in response. While “the court has an obligation to rectify any confusion expressed by the jury regarding instructions, [it] has discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Smithey (1999) 20 Cal.4th 936, 1009, citing § 1138.)
We conclude the trial court did not abuse its discretion in failing to further investigate the reason for either of the jury’s notes.
C. Unanimity instruction
Appellant also contends that the trial court failed to give a “unanimity instruction,” which led to a “serious risk that the jury would not be unanimous: some jurors might have found appellant guilty based on his possession of the check; others might have found him guilty based on his possession of the driver’s license.” A unanimity instruction must be given sua sponte where the evidence shows more than one act that could constitute the charged offense and the prosecutor does not elect to rely on any one such act. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.) Respondent asserts a unanimity instruction was not warranted as there was evidence supporting only one basis for the jury to find appellant guilty on count II.
The general unanimity instruction, such as that found in CALCRIM No. 3500, provides:
“The defendant is charged with ______ <insert description of alleged offense> [in Count ___] [sometime during the period of ___ to ___]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
If there is more than one act that could constitute the charged offense and the prosecutor elects one act, the proper unanimity instruction is found in CALCRIM No. 3502, which provides:
“You must not find the defendant guilty of _____ <insert name of alleged offense> [in Count ___] unless you all agree that the People have proved specifically that the defendant committed that offense [on] _____ <insert date or other description of event relied on>. [Evidence that the defendant may have committed the alleged offense (on another day/ [or] in another manner) is not sufficient for you to find (him/her) guilty of the offense charged.]”
“It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265).” (People v. McNeill (1980) 112 Cal.App.3d 330, 335.) What is required is that the jurors unanimously agree the defendant is criminally responsible for “one discrete criminal event.” (People v. Davis (1992) 8 Cal.App.4th 28, 41, italics omitted.)
“[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of [a unanimity instruction] or [its] equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Gordon (1985) 165 Cal.App.3d 839, 853, fn. omitted, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765.)
As explained in People v. Russo (2001) 25 Cal.4th 1124,
“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Id. at pp. 1134-1135.)
In People v. Diedrich (1982) 31 Cal.3d 263, the court found error where a single count of bribery was charged, but evidence proved several distinct episodes of bribery to which the defendant had very different defenses. (Id. at pp. 282-283.) Similarly, in People v. Thompson (1995) 36 Cal.App.4th 843, the court found error where the defendant was charged with a single count of diversion, but evidence showed various methods by which the defendant diverted money. (Id. at pp. 851-854.)
Here, the concern is different. There was no evidence presented that would support the theory that the driver’s license in appellant’s possession was stolen from Greer. There was evidence presented that appellant was in possession of a stolen check.
In addition, the prosecutor argued only that it was the stolen check that was the basis for the allegation in count II. Whether defense counsel’s argument identifies the stolen check or the driver’s license as the basis for the allegation is debatable. Defense counsel argued that appellant did not know the check was fraudulent (count I) because someone else’s fingerprint was found on the check, suggesting someone else had access to it. And, according to defense counsel, the driver’s license could not be “the key” to appellant’s knowledge that the check was fraudulent because he did not attempt to hide the license when the officer was present. When defense counsel then addressed count II, he began by talking about the fingerprint, and then reiterated the lack of guilty knowledge on the part of appellant when asked about the driver’s license.
Because there is some confusion about defense counsel’s closing argument, coupled with the brief confusion alluded to by the jury’s note, and out of an abundance of caution, we will assume, arguendo, that the unanimity instruction should have been given, but find no prejudice. When such instruction is required but not given, the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 governs, and reversal is required unless the error was harmless beyond a reasonable doubt (People v. Thompson, supra, 36 Cal.App.4th at p. 853).
The jury was correctly instructed on the count of receiving stolen property, including that it had to find that: (1) appellant received, concealed or withheld from its owner property that had been stolen; (2) when appellant received, concealed or withheld the property, he knew that the property had been stolen; and (3) appellant actually knew of the presence of the property.
There was no evidence presented at trial that would support the theory that the driver’s license in appellant’s possession was property that had been stolen. The only evidence presented was that it was a “phony” license with Greer’s name and address on it. Greer testified that he was in possession of his driver’s license, and the driver’s license in appellant’s possession did not have Greer’s license number, signature or picture on it. In contrast, there was strong and uncomplicated evidence presented that appellant was in possession of a stolen check on April 5, 2005. Appellant had the check in the vehicle he was driving, and a driver’s license in his wallet at the time matched the name on the check. Lagrimas testified that it was his practice to give Becerra several checks at a time in order to buy supplies, and that he had done so in March of 2005. Becerra testified that a presigned business check was taken from his vehicle sometime in March of 2005. Neither Lagrimas nor Becerra knew anyone by the name of Russell Greer, and neither had written out the check to him nor authorized anyone else to do so. And, while defense counsel’s closing argument may have been somewhat vague, the prosecutor’s closing argument clearly identified the bases for the allegations. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130 [look to entire record, including argument of counsel, to determine prejudice from instructional error].)
Looking to the record as a whole, we are satisfied beyond a reasonable doubt that, had the jury been given the omitted instruction, it would still have found, unanimously, appellant guilty of the count II charge.
Because we find no error or prejudice, we need not address appellant’s claim of ineffective assistance of counsel.
2. Did the trial court err when it failed to specify the statutory basis for the imposition of various fines and fees?
Appellant contends that remand is necessary because the trial court failed to specify the statutory basis for a court security fee and an administrative fee imposed at sentencing. We agree. (People v. High (2004) 119 Cal.App.4th 1192, 1201 [trial court must “separately list, with the statutory basis, all fines, fees and penalties imposed on each count”].)
A. Background
The probation report, prepared in anticipation of appellant’s sentencing, recommended a section 1202.4, subdivision (b) restitution fund fine and a $900 probation report fee pursuant to section 1203.1b. At sentencing, the trial court stated that it had considered the probation report and imposed the following fees and fines: “There is a restitution fund fine in the amount of $1,200. Parole revocation fine in an equal amount. Court security fee of $20. Administrative fee of $25.” The court also ordered that appellant pay $900 “payable to the Stanislaus County Probation Department, through Department of Corrections, for preparation of probation report.”
The minute order designated the statutes authorizing three of the ordered amounts: the $1,200 restitution fine imposed pursuant to section 1202.4; the $1,200 parole revocation fine imposed pursuant to section “1202.44/45”; and the $900 probation report fee imposed pursuant to section 1203.1b. The minute order shows the boxes in front of the “$20 Security Fee” and “$25 Admin. Fee” checked, but the form does not specify the statutory reference for either fee.
The abstract of judgment contains the same statutory designations, showing the section 1202.4 restitution fine of $1,200, the section 1202.45 probation revocation fine of $1,200, and the section 1203.1b probation report fee of $900. The abstract of judgment does not identify the statutory basis for the court security fee or the administrative fee, but states “$20 security fee and $25 court administration fee payable to Stanislaus County Superior Court.”
B. Applicable law and analysis
In People v. High, the trial court, instead of reading the separate fines, fees, penalties, and surcharges into the record at sentencing, stated:
“‘The court will impose a theft fine pursuant to [Penal Code section ]1202.5 payable to Butte County Sheriffs’ Office in the sum of $34. The court will impose a criminal laboratory analysis fee in the total sum of $510, a drug program fee, together with surcharges and penalties in the total sum of $1,530, a clandestine drug lab fine, together with penalties, assessment and surcharges totaling $1,700.’” (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The minute order listed the $1,530 sum as a drug program fee (Health & Saf. Code, § 11372.7), and both the minute order and the abstract of judgment designated the $1,700 assessment as a clandestine drug lab fine (Health & Saf. Code, § 11379.6, subd. (a)). (People v. High, supra, at p. 1200.) The court remanded with directions to list, “with the statutory basis, all fines, fees and penalties imposed on each count.” (Id. at p. 1201.)
The court explained:
“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] The abstract of judgment form used here, Judicial Council form CR-290 (rev. Jan. 1, 2003) provides a number of lines for ‘other’ financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, … the fee must be included in the abstract of judgment. [Citation.] [A] fine is … part of the judgment which the abstract must “‘digest or summarize.’” [Citations.]’” (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The court in High stated that it would “direct the trial court to correct the cited clerical errors,” and in the disposition it remanded the cause with directions to “separately list, with the statutory basis, all fines, fees and penalties on each count ….” (People v. High, supra, 119 Cal.App.4th at pp. 1200-1201.)
We agree with appellant that remand is necessary here. Neither the oral pronouncement of judgment, the sentencing minute order, nor the abstract of judgment specifies the statutory basis for the “$20 security fee” or the “$25 administration fee.” As respondent notes, the abstract of judgment does state that the security fee and court administration fee are payable to the Stanislaus County Superior Court. This may alleviate one of the concerns expressed in High: that the Department of Corrections have adequate information to allow it to collect and forward deductions from a prisoner’s wages to the appropriate agency. (People v. High, supra, 119 Cal.App.4th at p. 1200.) It does not, however, satisfy other obvious concerns—for example, appellate counsel’s need to review the propriety of any fines, fees, or penalties imposed as part of a criminal sentence.
The two fees in question here appear to be routine, as evidenced by the fact that they are printed on the minute order—albeit without statutory reference. While we are mindful of the burden on trial courts created by a legislative scheme that includes a myriad of possible fines, fees, and penalties, we also know that the trial courts are capable of finding efficient ways to comply with both the legislative scheme and the requirements recognized in High.
We are tempted to modify the abstract of judgment ourselves, to state the statutory basis for the security fee and the court administration fee. That, however, would require that we assume our independent research as to the statutory bases for the fees is correct. We decline to do so and remand to the trial court for correction of the abstract of judgment.
The Attorney General has not supplied us with any suggested statutory authority for either the security or the court administration fee. Brief research leads us to find that section 1465.8, subdivision (a)(1) provides that a $20 court security fee be imposed “on every conviction for a criminal offense, including a traffic offense, except parking offenses .…” Government Code section 29550.2, subdivision (a) provides, in relevant part, that “[a]ny person booked into a county jail … is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking.” Appellant’s probation report states that he was arrested on April 5, 2005, and booked at the Stanislaus County jail for a section 476 violation, a violation for which he was subsequently convicted.
3. Did the trial court err when it ordered appellant to pay for the cost of preparing his probation report?
The trial court, in accordance with the recommendation of the presentence probation report, ordered appellant to pay the sum of $900 for the cost of the preparation of a probation report. The minute order, in turn, states that the $900 cost was imposed pursuant to section 1203.1b. Appellant contends that the sentencing court erred when it ordered him to pay the $900 because (1) the probation officer did not make a determination of appellant’s ability to pay before recommending the amount; (2) the probation officer did not advise him of his right to a hearing on his ability to pay; and (3) appellant did not make a knowing and intelligent waiver of the right to an ability-to-pay hearing, each as provided in section 1203.1b, subdivision (a). In the alternative, appellant argues that he was denied effective assistance when defense counsel failed to object to imposition of the $900 fee without a finding of his ability to pay. We reject appellant’s contentions.
Section 1203.1b, subdivision (a) provides, in pertinent part, that if the probation officer determines that a defendant has the ability to pay some or all of the reasonable cost of preparing a presentence probation report and determines the amount and manner of such payment, “[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. 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.”
If the defendant does not waive his or her right to a hearing, the probation officer is to refer the matter to the court for the scheduling of a hearing. (§ 1203.1b, subd. (b).) At that hearing, “The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs .…” (Ibid.)
Here, the record does not indicate whether the probation officer advised appellant of his right to a hearing, and appellant did not expressly waive that right. Nor did the trial court conduct a hearing to determine appellant’s ability to pay the fee. Respondent contends, and appellant acknowledges, however, that People v. Valtakis (2003) 105 Cal.App.4th 1066 holds that a defendant has waived the issue for review on appeal when the defendant fails to object at the time of sentencing.
Appellant cites to People v. O’Connell (2003) 107 Cal.App.4th 1062, in which the court held that the absence of a knowing and intelligent waiver of a hearing to determine ability to pay mandated remand for such a hearing. (Id. at pp. 1067-1068.) But, in O’Connell, the prosecution agreed that the case should be remanded, and the opinion does not address the question whether the issue was preserved for appeal. (Ibid.) An opinion is only authority for the proposition it actually considers and decides. (In re Chavez (2003) 30 Cal.4th 643, 656.)
We will follow the holding of People v. Valtakis, supra, 105 Cal.App.4th 1066. Recognizing his challenge might be waived by defense counsel’s failure to object to the fee or to request an “ability to pay” hearing in the trial court, appellant contends he received ineffective assistance of counsel.
A criminal defendant has the constitutional right to effective assistance of trial counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) That constitutional guarantee includes representation at sentencing. (See, e.g., In re Perez (1966) 65 Cal.2d 224, 229-230; People v. Cropper (1979) 89 Cal.App.3d 716, 719.)
To establish a claim of ineffective assistance of counsel, an appellant must show both deficient performance and resultant prejudice. (People v. Hart (1999) 20 Cal.4th 546, 623.) “In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979.) Further, where a claim of ineffectiveness is made on appeal,
“the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record 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’ [citation], the contention must be rejected.” (People v. Haskett (1990) 52 Cal.3d 210, 248.)
Appellant asserts that there “is no conceivable tactical reason why trial counsel would not object to imposition of a $900 probation report fee without a finding of appellant’s ability to pay.” We disagree.
As noted ante, the court may order a defendant to pay all or part of the costs of the preparation of a probation report. (§ 1203.1b, subd. (a).) Ability to pay means “the overall capability of the defendant to reimburse the costs, or a portion of the costs, of … preparing the … presentence report,” (§ 1203.1b, subd. (e)) based on the defendant’s “[p]resent financial position” (id., subd. (e)(1)) and “[r]easonably discernible future financial position” (id., subd. (e)(2)), over a period of no more than one year from the date of the hearing (ibid.). The court may also consider “[a]ny other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs.” (§ 1203.1b, subd. (e)(4).)
There is evidence in the record that appellant was 41 years old at the time of sentencing. The probation officer determined that, up until the time of his arrest, appellant was gainfully employed. He had worked at the same company for three years and had earned approximately $500 per week. Although appellant had been incarcerated from 1999 through 2003, appellant told the officer that he had been employed “off and on for ten years” as a tile worker.
At sentencing, defense counsel acknowledged to the court that appellant was “working” at the time of his arrest. The record sheds no light on any other knowledge counsel may have possessed about appellant’s financial circumstances. Thus, the record “sheds no light on why counsel acted or failed to act in the manner challenged ….” (People v. Haskett, supra, 52 Cal.3d at p. 248.) And, thus, appellant cannot show that counsel performed deficiently.
For similar reasons—that is, the absence of information about appellant’s financial circumstances in the record—we note appellant also cannot make the required showing of prejudice. He cannot show that, had counsel requested an ability-to-pay hearing, a different result likely would have obtained.
We, therefore, reject appellant’s assertion of error.
DISPOSITION
The judgment is affirmed. The cause is remanded to the trial court with directions to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: WISEMAN, Acting P.J., CORNELL, J.