Opinion
A131035
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. RICARDO ZARAGOZA MENDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC071762A)
I.
INTRODUCTION
Appellant Ricardo Zaragoza Mendez appeals from his convictions after a jury found him guilty of rape by force (Pen. Code, § 261, subd. (a)(2) ), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sexual penetration (§ 289, subd. (a)(1)), assault with intent to commit rape (§ 220, subd. (a)), misdemeanor assault (§ 245, subd. (a)(1)), and false imprisonment by force or fear (§ 236). The sole issue he raises on appeal is that the trial court erred at sentencing by imposing a $700 forensic examination fee, pursuant to section 1203.1h, subdivision (b), without a finding that he had the ability to pay such fine. In related arguments, he contends that if his objection to the imposition of the forensic examination fee has been waived, his counsel's failure to lodge an objection was ineffective assistance of counsel. In any case, appellant argues that any implied finding that he had the ability to pay was not supported by substantial evidence. For the reasons stated below, we affirm.
All further unspecified statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal issue raises a single claim of error occurring at the time of sentencing, we will dispense with a recitation of the facts underlying appellant's convictions.
Sentencing took place on January 14, 2010. After hearing a few words from the victim, appellant's counsel argued points in mitigation. The prosecutor submitted the matter on a sentencing memorandum he filed prior to the hearing. The court then offered several comments regarding the seriousness of the crimes, after which it imposed a number of fines and penalties. Specifically, the court ordered appellant to pay restitution to the victim of $552, reimbursement in the amount of $700 to the Redwood City Police Department for the cost of a forensic examination of the victim, $800 in statutory restitution, a $200 fine pursuant to section 1202.45, which was stayed until appellant successfully completed parole, court security fines totaling $160, and conviction fines totaling $120. Appellant was then sentenced to an aggregate state prison term totaling 19 years 4 months. No objections to any part of the sentence were made by appellant's counsel.
III.
LEGAL DISCUSSION
A. Appellant Has Waived Any Objection to the Imposition of a $700 Forensic Examination Fee by His Failure to Object Below, or If Not Waived, the Implied Finding that Appellant Had the Ability to Pay Is Supported by Substantial Evidence.
The $700 forensic examination fee was imposed pursuant to section 1203.1h, subdivision (b) , which requires a finding that the defendant has the ability to pay it. In evaluating that ability to pay, the statute notes that "[i]n making the determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§ 1203.1h, subd. (b).) In this case, appellant was ordered to pay $552 in restitution to the victim, and $800 under section 1202.45 as statutory restitution.
The subdivision states as follows: "(b) In addition to any other costs which a court is authorized to require a defendant to pay, upon conviction of any offense involving sexual assault or attempted sexual assault, including child molestation, the court may require that the defendant pay, to the law enforcement agency, county, or local governmental agency incurring the cost, the cost of any medical examinations conducted on the victim for the collection and preservation of evidence. If the court determines that the defendant has the ability to pay all or part of the cost of the medical examination, the court may set the amount to be reimbursed and order the defendant to pay that sum to the law enforcement agency, county, or local governmental agency, in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making the determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. In no event shall a court penalize an indigent defendant by imposing an additional period of imprisonment in lieu of payment."
As noted earlier, no objections were made by defense counsel during the sentencing hearing. Respondent argues that the failure to object waives any objection on appeal to the imposition of the forensic examination fee.
We begin by noting that the probation report filed in advance of the sentencing hearing specifically recommended, among other things, the imposition of the $700 forensic examination fee. When a statute mandating imposition of a fine requires a consideration of the ability to pay, the defendant must raise the issue in the trial court by objecting or demanding a hearing, especially when, as in this case, the probation report recommends imposition of such a fine. If the defendant fails to object, he or she forfeits the issue on appeal. (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750.)
In People v. Crittle (2007) 154 Cal.App.4th 368 the court considered a challenge to the imposition of fines, including one under section 1202.5. The court held that "[s]ince defendant did not raise the issue in the trial court, we reject his contention that the fines must be reversed because the court did not make a finding of defendant's ability to pay them, and nothing in the record shows he had the ability to pay. [Citation.]" (Id. at p. 371; see also People v. Hodges (1999) 70 Cal.App.4th 1348, 1357.) The persuasive reasoning in these cases compels the conclusion that any objection to the imposition of the $700 forensic examination fee was waived or forfeited by appellant, and he is foreclosed from challenging that fee for the first time on appeal.
Appellant argues that we should rely, not on Crittle or Hodges, but on the decision in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco) and conclude that he has not forfeited this issue. He claims that because he is challenging the lack of substantial evidence to support an implied finding of ability to pay, the exception to the waiver rule recognized in Pacheco applies.
In Pacheco, the defendant failed to object in the trial court to certain probation conditions. Among other issues, he challenged three fees on appeal: (1) a $259.50 criminal justice administration fee (Gov. Code, § 29550, subd. (c) or Gov. Code, § 29550.2), (2) a $64 per month probation fee (§ 1203.1b, subd. (a)), and (3) a $100 attorney fee (§ 987.8). Defendant claimed the failure to object did not constitute a waiver because he was challenging the evidentiary basis for an implied finding that he had the ability to pay the fees. (Pacheco, supra, 187 Cal.App.4th at p. 1397.) The court agreed that the issues on appeal were not forfeited or waived by the defendant's failure to object in the trial court. (Ibid.).
While we disagree with Pacheco's conclusion, we note that the Supreme Court has recently granted review in People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513, a case relied upon by respondent in this appeal. McCullough had expressed disagreement with Pacheco's substantial evidence waiver exception. (People v. McCullough, supra, at p. 871.) Therefore, out of an abundance of caution, we consider the merits of appellant's substantial evidence challenge to the court's implied finding that he had the ability to pay the forensic examination fee.
In People v. Gibson (1994) 27 Cal.App.4th 1466, under similar facts to those in Crittle and Hodges, the court found waiver, and observed that it is inherently unfair to permit a defendant to obtain an automatic reversal by remaining silent about his inability to pay in the trial court, especially where the matter could easily have been corrected by appropriate objection. Not applying forfeiture principles in such cases would not only encourage attorney gamesmanship, but deplete judicial resources and waste taxpayer money. (Id. at pp. 1468-1469.) We agree.
The finding of an ability to pay may be express or implied and must be supported by substantial evidence. (Pacheco, supra, 187 Cal.App.4th at p. 1400.) This point is conceded by appellant. Under the substantial evidence test, "our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The court had before it the presentence probation report, which it reviewed before sentencing. That report revealed that appellant, a "61-year-old documented immigrant," with a second grade education, had been in the United States since he was 18. His first employment in the United States was as a painter, but for the last 26 years he worked fulltime as a gardener until the company for which he worked was sold in 2007, and he became unemployed. Since becoming unemployed, appellant had received unemployment benefits in the amount of $2,000 per month.
While he was previously married two times, apparently appellant had no support obligation to either former spouse, nor did he have any children. Appellant's criminal history consisted of one misdemeanor conviction for domestic violence in 1991. Appellant had refrained from alcohol use since 1996, and emphatically denied any experimentation or use of controlled substances.
Under the section entitled "ABILITY TO PAY," the presentence probation report states: "The defendant is receiving unemployment benefits and indicates he is willing to pay restitution to the victim."
At sentencing, defense counsel argued appellant's stability was one of the circumstances in mitigation, noting that he had been living in his residence for 30 years "without a problem" before the crimes for which he was convicted were committed.
We agree with respondent that this evidence is sufficient to support the trial court's implied finding of ability to pay. "Ability to pay does not necessarily require existing employment or cash on hand." (People v. Staley (1992) 10 Cal.App.4th 782, 785.) Indeed, while he had been unemployed for three years before sentencing, appellant had worked fulltime for decades with no support obligations other than to himself. There was no substance abuse problems that might conceivably interfere with his ability to earn and support himself. He had been living in his residence for 30 years "without a problem." As noted, since becoming unemployed, appellant was receiving $2,000 in unemployment benefits each month. The probation department concluded that these facts showed an ability to pay, and the same may be reasonably inferred from appellant's statement that he was willing to pay restitution to the victim—an offer he was not likely to make if he lacked the means to do so.
Appellant also failed to submit a financial statement to the probation department. While appellant's counsel on appeal attributes this omission to an inability to speak English, we note that the probation report states that appellant was "only marginally cooperative" during the interview process, and that he did not complete the probation application because " 'his attorney directed him not to write anything.' " Although not conclusive on the issue, we agree with respondent that this evidence justifies an inference that appellant's refusal was a "tacit acknowledgment of [his]positive [financial] assets."
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Under all of these circumstances, we conclude that the trial court's implied finding that appellant had the ability to pay the $700 forensic examination fee is supported by substantial evidence. Thus, the facts here are far different from those in Pacheco, where there was "no evidence in the record of Pacheco's assets, employment status or other means of income from which the court could have made a determination of his ability to pay . . . ." (Pacheco, supra, 187 Cal.App.4th at p. 1399.)
B. Appellant Has Failed to Satisfy His Burden of Showing Ineffective Assistance of Counsel in Not Objecting to the Forensic Examination Fee.
Anticipating the possibility that we might conclude he has waived any objection to the forensic examination fee, appellant alternatively argues that his trial counsel rendered ineffective assistance because he failed to object, thus, preserving the issue for appeal.
It is appellant's burden to demonstrate the inadequacy of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn 10.) To prevail on a claim of ineffective assistance of counsel, appellant must establish his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); accord, People v. Fosselman (1983) 33 Cal.3d 572, 583-584.)
In determining whether counsel's performance was deficient, generally a court must exercise deferential scrutiny to counsel's performance. (Strickland, supra, 466 U.S. at p. 689; Pope, supra, 23 Cal.3d at p. 424.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442.) When, however, 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" [citations], the contention must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Case law recognizes that counsel's omission may have been based, in part, on legitimate considerations that do not appear on the record. (People v. Lucas, supra, at p. 443.)
Given the applicable standards, we conclude appellant cannot succeed on his claim of ineffective assistance of trial counsel because the record does not affirmatively establish counsel's performance was deficient (see People v. Sanchez (1997) 58 Cal.App.4th 1435, 1448; Pope, supra, 23 Cal.3d at p. 428), nor is this a situation where " „ "there simply could be no satisfactory explanation" ' for counsel's act or omission. . . ." (People v. Sanchez, supra, at p. 1448; People v. Ledesma (1987) 43 Cal.3d 171, 218.)
In the absence of any statement from counsel, appellant has not demonstrated that there could be no satisfactory explanation for counsel's omission. (People v. Kipp (1998) 18 Cal.4th 349, 366-367.) It may have been that defense counsel concluded that objecting was futile, since the probation report indicated that appellant had the ability to pay the fines and penalties levied, and the evidence supported this conclusion. So too, in light of the court's initial comments concerning the gravity of the crimes committed, counsel may have been reluctant to raise what was obviously (in light of the totality of the sentence imposed) a relatively minor matter out of concern for provoking the judge, who had not yet imposed the state prison sentence.
Here, the record does not reveal trial counsel's reasons for not objecting to the imposition of the forensic examination fee. Because valid tactical reasons may have existed, appellant's claim may be summarily rejected. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) "[T]hat counsel could object, but does not do so for tactical reasons, does not necessarily indicate incompetence [citations]. [¶] . . . Where, from the record, it is a matter of conjecture or surmise whether the failure to present a defense was the product of deliberate judgment or a lack of judgment, denial of the constitutional right to effective counsel . . . has not been shown [citation]." (People v. Thomas (1974) 43 Cal.App.3d 862, 869.)
In any case, appellant cannot show prejudice stemming from the failure to object. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Because there was substantial evidence supporting the imposition of the forensic examination fee, any objection would have been overruled. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253 [counsel is not required to make futile motions or indulge in idle acts to appear competent]; People v. Ferraez (2003) 112 Cal.App.4th 925, 934 [failure to object to evidence not ineffective assistance of counsel where objection would have been futile].) Therefore, we reject appellant's alternative ineffective assistance of counsel claim.
IV.
DISPOSITION
The judgment and sentence are affirmed.
RUVOLO, P. J. We concur: SEPULVEDA, J. RIVERA, J.