11/14/2020 People v.

Paz, G052837 | Casetext

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CARA A.I. "cheri" "pham" JX § AN

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People v. Paz
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE Jun 22, 2017

G052837 (Cal. Ct. App. Jun. 22, 2017)

G052837

06-22-2017

THE PEOPLE, Plaintiff and Respondent, v. CESAR PAZ, Defendant and Appellant.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J.
Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

O'LEARY, P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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. (Super. Ct. No. 14CF1341) OPINION
Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge.
Reversed and remanded. Melanie K. Dorian, under appointment by the Court of Appeal, for
Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M.
2 Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent. *2

Cesar Paz appeals from an order requiring him to pay the costs of preparing his probation
and sentencing report (the Report).1 Paz argues the trial court erred in ordering him to pay
the costs of preparing the Report. The Attorney General concedes the error, assuming we
conclude the claim is preserved for appellate review. We conclude it is and reverse and
remand the matter for further proceedings.
1 On June 9, 2016, we granted Paz's motion for judicial notice of the Report filed on November

14, 2014. --------

FACTS
This court affirmed Paz's conviction for assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1), all further statutory references are to the Penal Code), and three-year prison
sentence. (People v. Paz (Aug. 28, 2015, G051044) [nonpub. opn.].) This court granted Paz
permission to file an untimely notice of appeal, and he did so.

DISCUSSION

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11/14/2020 People v. Paz, G052837 | Casetext

Procedural History
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In the Report, the probation officer stated she was unable to determine Paz's ability to pay
CARA A.I. "cheri" "pham" JX § AN
because "[h]e failed to cooperate with a financial evaluation for a determination of his
ability to pay the cost of the . . . [R]eport." Consequently, the probation department 2
Results People v. Paz Copy Cite
recommended the trial court conduct a "[f]inancial [h]earing to determine [Paz's] ability to
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pay for the cost of the . . . Report in the amount of $2,762.17."

At the financial hearing, the trial court found "the Department of Corrections [DOC] will be
determining whether or not . . . Paz has the ability to pay any fines and fees or costs ordered
by this court." The court ordered Paz to "pay the cost of the . . . [R]eport of $2,762.17, and
3 that is to be collected by the [DOC]." Defense counsel did not object. *3

Law
Section 1203.1b, subdivision (a), states that when a defendant suffers a conviction and is
the subject of a probation and sentencing report, "the probation officer, or his or her
authorized representative, taking into account any amount that the defendant is ordered to
pay in fines, assessments, and restitution, shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any" report.

Section 1203.1b, subdivision (b), provides as follows: "When the defendant fails to waive
the right provided in subdivision (a) to a determination by the court of his or her ability to
pay and the payment amount, the probation officer shall refer the matter to the court for the
scheduling of a hearing to determine the amount of payment and the manner in which the
payments shall be made. The court shall order the defendant to pay the reasonable costs if it
determines that the defendant has the ability to pay those costs based on the report of the
probation officer, or his or her authorized representative."

In a recent trilogy of cases, our Supreme Court has held the forfeiture rule applies in various
circumstances in the sentencing context—People v. Trujillo (2015) 60 Cal.4th 850, 853
(forfeiture rule applies to probation supervision fees and presentence investigation fees),
People v. Aguilar (2015) 60 Cal.4th 862, 864 (forfeiture rule applies to probation fees and
reimbursement of attorney fees), and People v. McCullough (2013) 56 Cal.4th 589, 597
(McCullough) (forfeiture rule applies to jail booking fees).

However, an earlier case from our Supreme Court, People v. Butler (2003) 31 Cal.4th 1119
(Butler), is instructive. In Butler, the court held defendant had not waived his right to claim
on appeal there was insufficient evidence to support an order for HIV testing. The court
stated: "'Generally, points not urged in the trial court cannot be raised on appeal. [Citation.]
The contention that a judgment is not supported by substantial evidence, however, is an
obvious exception.' [Citation.] This principle of appellate review is not limited to judgments
4 . . . ." (Id. at p. 1126, fn. omitted.) *4

We acknowledge our Supreme Court has stated a "[d]efendant may not 'transform . . . a
factual claim into a legal one by asserting the record's deficiency as a legal error.'
[Citation.]" (McCullough, supra, 56 Cal.4th at p. 597.) However, the Attorney General
concedes this case is more like Butler, supra, 31 Cal.4th 1119, and remand is necessary. The
Attorney General does so because the trial court apparently delegated the ability-to-pay
determination to the DOC, and the court did not make such a finding before ordering Paz to
pay $2,762.17 to the DOC. The Attorney General could not cite to any authority, and we
could find none, that allows the court to delegate this determination to the DOC. (People v.
Wilson (1982) 130 Cal.App.3d 264, 269 [court may not delegate ability-to-pay
determinations].) As in Butler, the factual predicate of the order, that is, Paz's ability to pay,
defines the trial court's substantive authority to make the order. Thus, Paz did not waive his

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11/14/2020 People v. Paz, G052837 | Casetext

claim
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for the trial court to determine whether Paz has the ability to pay for the costs of the Report 1

as required by section"cheri"
CARA A.I. "pham"
1203.1b. JX § AN

DISPOSITION
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The order
Readis reversed,
Analyses and
0 the matter
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O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.

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