Opinion
E052275 Super.Ct.No. INF10001137
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. PRISCILLA PARASTOO KAVOUSSI, Defendant and Appellant.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Affirmed.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Having been charged with a felony in the information, defendant and appellant Priscilla Parastoo Kavoussi pled guilty to misdemeanor grand theft (Pen. Code, § 487, subd. (a)) and was placed on probation. Defendant contends a $414.50 booking fee (Gov. Code, § 29550) and $717 in attorney fees (Pen. Code, § 987.8) were imposed without a hearing to determine her ability to pay and without sufficient evidence. Because defendant did not obtain a certificate of probable cause, we are unable to address the booking fee contention or that defendant had the ability to pay some amount of attorney fees at a rate of $119.50 per hour. Subject to that limitation, we affirm the setting of attorney fees reimbursement at $717.
BACKGROUND
On November 8, 2010, after a jury had been empanelled, defendant pled guilty in exchange for being immediately placed on probation on the terms in "the Sentencing Memorandum Form which is incorporated into this Plea Form." Among the boxes checked on the sentencing memorandum form are "Pay booking fees of $414.45 . . . (GC § 29950)" and "Court finds defendant has the ability to reimburse the county for attorney fees at the standard rate of $119.50 per hour. Attorney fees ordered in the amount of $ ___."
Mirroring the sentencing form, the trial court ordered defendant "[t]o pay a booking fee in the amount of $414.45."
As to the attorney fees, the trial court stated, "the Court finds that defendant has the ability to reimburse the county for attorney's fees at the standard rate of $119.50 per hour. The attorney fees are ordered in the amount of—[¶] How many hours do you have in the case, [defendant's trial counsel]?"
Defendant's trial counsel stated that he had worked "five at this point" and requested that defendant be evaluated because he did not know if defendant actually had the ability to pay.
The People stated, "That's fine," but asserted that 10 hours "would probably be more appropriate" because the preliminary hearing had been worked on by a different attorney from the public defender's office.
The trial court then stated, "Okay. Attorney's fees then to be based on 10 hours, but subject to review, is that what you want?"
Defendant's trial counsel replied, "Well, your Honor, I don't think the Prelim took more than an hour. So I'm representing to this Court I've probably spent about five in prep." The trial court then inquired, "Should we say six hours?" Defendant's trial counsel responded, "I can do six hours." Accordingly, the trial court found "that six hours have been used in this case."
The sentencing minute order states, "Pay booking fees of $414.45 (GC 29550)." It also states, "Court finds that the Defendant has the ability to reimburse the County for Attorney Fees in the amount of $717.00 payable to the Court through [Enhanced Collections Division]. [¶] Division of Enhanced Collections to determine if defendant is able to pay the attorney fees of $717.00."
Financial statements filed by defendant on December 6, 2010, indicate she is unemployed, has no assets, has an $1,800 medical debt, is pregnant, has two dependents, and gets help for food and board from her family.
DISCUSSION
Because defendant had been charged in the information with a felony, her case was a felony case even though she was only convicted of a misdemeanor. (Cal. Rules of Court, rule 8.304(a)(2); see Pen. Code, § 691, subd. (a).) However, defendant's notice of appeal was filed using the optional misdemeanor form (Judicial Counsel Forms, form CR-132), which does not include a provision for requesting a certificate of probable cause, and she did not otherwise request or obtain such a certificate. Accordingly, we requested supplemental briefing to address whether we may entertain each of defendant's contentions. We conclude that we may not reach defendant's contention as to the booking fee and may only address the attorney fees reimbursement in light of her agreement that she possessed the ability to pay at the standard rate of $119.50 per hour with no specification of a total amount.
"[A]n appeal taken from a conviction obtained by plea of guilty or nolo contendere is 'operative' without issuance of a certificate of probable cause (Pen. Code, § 1237.5) only if the notice of appeal states the appeal is based on either of two broad categories of grounds not requiring a certificate: those involving postplea proceedings and not challenging the validity of the plea, or those involving the validity of a search or seizure previously challenged under section 1538.5 (sometimes collectively referred to here as 'noncertificate' grounds)." (People v. Jones (1995) 10 Cal.4th 1102, 1105, unrelated dicta disapproved in In re Chavez (2003) 30 Cal.4th 643, 656.) Without a certificate, a Court of Appeal "must decline to address certificate issues." (People v. Mendez (1999) 19 Cal.4th 1084, 1099.)
Defendant contends the trial court erred by imposing a booking fee (Gov. Code, § 29550) and attorney fees (Pen. Code, § 987.8) without holding an ability to pay hearing and without sufficient evidence she had the ability to pay. Following our request for supplemental briefing, defendant contends "the agreement cannot be reasonably construed as obviating the legally required findings of ability to pay," the agreement must be construed to have left open the question of ability to pay, and that interpreting the agreement as obviating the ability to pay finding would render the orders a nullity because probation could not be revoked for a payment a defendant lacked the ability to pay.
Preliminarily, we note that both fees that defendant challenges were in the sentencing memorandum that was incorporated into defendant's plea agreement. Thus, when defendant agreed to enter a guilty plea, she agreed that she would be ordered to pay the fees in the manner specified in the sentencing memorandum. That is, she expressly agreed to pay the booking fee and agreed to pay reimbursement of attorney fees at a rate of $119.50 per hour. Issues relating to the validity of a plea require compliance with Penal Code section 1237.5. As the Supreme Court stated: "[C]ourts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Defendant is challenging the sentence that imposed fees that she negotiated as part of her plea agreement; thus, she attacks an integral part of her plea. This attack is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (People v. Mendez (1999) 19 Cal.4th 1084, 1095-1099; Panizzon, at pp. 76, 79, 89.) In view of the foregoing, in the absence of a certificate of probable cause, we may not reach her contentions as to the booking fee or as to her ability to pay for attorney fees.
While the plea agreement left open the total amount of hours to establish the total attorney fees, defendant has not challenged the amount being set based upon six hours of attorney time. (See People v. Buttram (2003) 30 Cal.4th 773, 777 [agreement leaving open sentencing range does not require a certificate of probable cause to appeal sentence within the range].) The discussion at sentencing regarding the amount of time provided by defendant's trial counsel and the length of the preliminary hearing worked by a different public defender, provides sufficient evidence to support the trial court's setting of fees based upon six hours.
Contrary to defendant's assertion, the plea agreement did not obviate the requirement of an ability to pay finding. Instead, defendant's agreement that she possessed the ability to pay provides the basis for the finding. Because defendant made a conscious, deliberate tactical choice to enter into a plea agreement containing the challenged terms, any error in finding an ability to pay was invited. (See People v. Lee (2011) 51 Cal.4th 620, 645 [discussing invited error in requesting a jury instruction].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
KING
J.
CODRINGTON
J.