People v. Crowley CA1/1

Filed 4/21/16 P. v. Crowley CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A142237
v.
BRIAN KEITH CROWLEY, (Solano County
Super. Ct. No. FCR-299785)
Defendant and Appellant.

INTRODUCTION
After the trial court denied defendant’s motion to suppress, a jury found him guilty
of felony possession of methamphetamine (Health & Saf. Code, § 11377).1 The court
suspended imposition of sentence and placed him on three years’ formal probation,
conditioned on, among other things, serving 90 days in the county jail. The court also
imposed numerous fines and fees, including for drug treatment programs, drug and
alcohol testing, and AIDS education.
Defendant claims the trial court erred in denying his motion to suppress because
the police did not have reasonable suspicion to detain him, and even if they did, the pat
search that ensued exceeded constitutional bounds. He also asserts the court erred in
imposing the specified fees because it delegated the determination of his ability to pay to
the probation department. He further asserts he does not have the ability to pay and
therefore the fees should be stricken.

1
All further statutory references are to the Health and Safety Code unless
otherwise indicated.
1
 We affirm. The trial court did not err in denying defendant’s motion to suppress,
and because he failed to object when the fees were imposed, he forfeited any complaint
about referring his ability to pay to the probation department.
BACKGROUND
We recite only the facts relevant to the issues on appeal. The information charged
defendant with transportation of methamphetamine for sale (§ 11379, subd. (a)) and
possession for purposes of sale (§ 11378). About three months after the information was
filed, defendant moved to suppress “[a]ny and all physical evidence,” as well as any and
all statements, obtained by the police, claiming the evidence was the fruit of an unlawful
detention and pat search.
At the hearing on the motion, Officer Dustin Willis, a narcotics detective with the
City of Vacaville Police Department, testified that on April 26, 2013, he and other police
officers executed a search warrant at a residence occupied by David DeLuna. The
residence was located on a large lot, over five acres in size. Besides DeLuna’s residence,
there were a number of farm and livestock structures on the property.
Officer Willis testified DeLuna told him “he had methamphetamine at the
residence including a firearm and marijuana . . . [a]nd that his property was specifically
used by his friends to purchase and/or s[ell] methamphetamine on a regular basis . . .
[a]nd then he told me that he was expecting several of his associates to show up on his
property that day for that purpose.” Officer Willis relayed this information to Officer
Stuart Tan, also a Vacaville narcotics detective and who also was on the property, and the
detectives “wait[ed] for potential customers.”
Defendant subsequently approached the DeLuna property in an older Jeep.
Officer Tan recognized him as he drove up because Tan “had done surveillance of
[defendant] . . . that led up to the search warrant” and was “actually in the process of
authorizing a search warrant for [defendant] and that vehicle and resident [sic] regarding
the trafficking of methamphetamine.” Tan also testified he had “received information
that [defendant] was in possession of several firearms at his residents [sic] . . . [and] was

2
possibly in possession of handguns also,” but conceded it was “unclear as far as
handguns.”
As defendant pulled to a stop near the officers, Officer Tan called out, “ ‘[H]ey,
what’s going on.’ ” Although initially nonresponsive, defendant eventually engaged in
conversation with the officers. Based on the information he had gathered in support of
the search warrant and the statement from DeLuna, Tan believed defendant “was there,
specifically, to purchase and/or sale methamphetamine.” So, he asked defendant to get
out of the jeep.
Noticing “several bulges” in the pockets of defendant’s Cargo shorts, Officer Tan
asked if he could perform a search. Tan could not recall whether defendant consented
and, in any case, proceeded with a pat search. Tan felt what he “believed to be a bag of
methamphetamine and a pack of cigarettes” in defendant’s front left shorts pocket.
Specifically, Tan felt what he thought was “plastic sliding across the front of the cigarette
box and then crunchy stuff in plastic.” He believed the crunchy stuff was
methamphetamine based on his “training and experience” and being “involved in
numerous prior narcotics investigations and pat search[e]s of substance and
methamphetamine in their pockets.” Tan asked defendant if it was methamphetamine.
Initially defendant did not respond. When Tan asked him if he “would be honest” with
him and if it was methamphetamine, defendant eventually said it was. Tan then removed
the methamphetamine from defendant’s pocket and subsequently found another bindle of
the drug in the jeep.
On cross-examination, Officer Tan testified the reason for the pat search was his
“concern . . . that [defendant] could have weapons” and his primary intent while pat
searching was “looking for weapons on his person.” As he felt defendant’s front left
pocket, he felt what he “believed to be a bag of methamphetamine” as he was “grasping it
from the outside.” He explained he “felt the bag and the crunchiness together” and
“recognized that it was a bag of crystal methamphetamine from prior searches.”
The court denied defendant’s motion to suppress, finding “[t]he officers have
knowledge of the fact that this place has been used for buying and selling drugs. And the

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defendant arrives. . . . Officer Tan has knowledge that maybe he has possessed weapons
in the past. Thereon, he asked to pat search the individual. During the course of the pat
search for weapons, he decides and discovers something more. [¶] I think that is
reasonable to change his direction. And I think his actions up to that point were—there
[was] probable cause for them at that point and this led on to the drugs.”
When the case went to trial, a jury found defendant guilty of simple possession of
methamphetamine (§ 11377), a lesser included offense of count one, the transportation
for sale charge. After the jury failed to reach a verdict on the second count and on the
prosecution’s request, the court dismissed the possession for sale charge.
The trial court suspended imposition of sentence and placed defendant on three
years’ formal probation, conditioned on serving 90 days in the county jail term, with five
days credit for time served. The court additionally imposed numerous fines and fees,
including a “150-dollar fee pursuant to . . . Section 11372.7” and “any fees for drug and
alcohol testing.” Regarding the AIDS education fee, the court directed defendant to “pay
a fine, pursuant to 1463.23” but did not set the amount, instead directing “Probation to
assess the typical fee under that code section.” The court also ordered defendant to
“provide any financial information to the Probation Department as they request” and “to
report to the Probation Department for a financial evaluation.” The presentencing
probation report indicated defendant had been employed for three weeks on a parttime/on
call basis, but did not include an evaluation of defendant’s ability to pay fines and fees.
At the conclusion of the hearing, the court asked defendant if he understood and accepted
the terms and conditions of probation, to which defendant responded “Yes, sir.”
DISCUSSION
Motion to Suppress and Standard of Review
Defendant asserts the evidence obtained by the officers, including the
methamphetamine found in his pocket, was the fruit of an unlawful detention and pat
search, and therefore should have been suppressed.
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
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where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924,
quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) Insofar as the facts are
undisputed, we independently determine the constitutionality of the challenged search or
seizure. (People v. Balint (2006) 138 Cal.App.4th 200, 205.)
Defendant claims Officer Tan lacked reasonable suspicion to detain him at
DeLuna’s residence. He further claims that even if Tan had reasonable suspicion, the pat
search exceeded the bounds of what is constitutionally permitted.
“ ‘A police officer may temporarily detain and pat search an individual if he
believes that criminal activity is afoot, that the individual is connected with it, and that
the person is presently armed. (Terry v. Ohio (1968) 392 U.S. 1, 30 . . . .) The issue is
whether the officers can point to specific and articulable facts that give rise to a
reasonable suspicion of criminal activity. Reasonable suspicion is a less demanding
standard than probable cause and is determined in light of the totality of the
circumstances. [Citation.]’ [Citation.] ‘ “A detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.” ’
[Citation.]” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395–1396.)
Defendant maintains the officers had no reasonable suspicion of criminal activity
because “it was unclear at the time the police detained [him] whether he was traveling to
Mr. DeLuna’s residence,” as opposed to another building on the property, and Officer
Tan only had a “hunch that [he] was visiting the property to engage in drug transactions.”
Officer Tan was acting on more than a “hunch.” He knew DeLuna was expecting
methamphetamine customers to arrive that day, and recognized defendant and his vehicle
from his own investigation of defendant regarding methamphetamine trafficking.
Officer Tan was in the process of obtaining a search warrant for defendant and the Jeep,
and had also received information defendant possessed weapons. Thus, he possessed

5
sufficient information to form a reasonable suspicion defendant might be involved in
criminal activity, allowing a brief detention to inquire further.
Although defendant claims reasonable suspicion was lacking because he may have
been heading to another residence on the property, “[t]he possibility of an innocent
explanation does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct. Indeed, the principal function of his investigation is to
resolve that very ambiguity and establish whether the activity is in fact legal or illegal—
to ‘enable the police to quickly determine whether they should allow the suspect to go
about his business or hold him to answer charges.’ ” (In re Tony C. (1978) 21 Cal.3d
888, 894.)
Defendant next claims the pat search exceeded the constitutional bounds permitted
by the Fourth Amendment. “A Terry search is limited to ‘an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for the assault of
the police officer.’ (Terry v. Ohio, supra, 392 U.S. at p. 29.) As a general rule, an officer
may not search a suspect’s pockets during a patdown unless he or she encounters an
object there that feels like a weapon. (People v. Dickey (1994) 21 Cal.App.4th 952,
957.)” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.)
However, under what has been termed the “plain-touch” exception to the warrant
requirement, an officer may seize an object that is not a weapon if, during the pat search,
its incriminating character is readily apparent. (People v. Dibb (1995) 37 Cal.App.4th
832, 836 (Dibb.) “If a police officer lawfully pats down a suspect’s outer clothing and
feels an object whose contour or mass makes its identity immediately apparent, there has
been no invasion of the suspect’s privacy beyond that already authorized by the officer’s
search for weapons; if the object is contraband, its warrantless seizure would be justified
by the same practical considerations that inhere in the plain-view context.” (Minnesota v.
Dickerson (1993) 508 U.S. 366, 375–376 (Dickerson).)
In determining on which side of the Dickerson line a particular search falls, the
full factual context is of importance. “The critical question is not whether [the officer]
could identify the object as contraband based on only the ‘plain feel’ of the object, but

6
whether the totality of the circumstances made it immediately apparent to [him] when he
first felt the lump that the object was contraband.” (Dibb, supra, 37 Cal.App.4th at pp.
836–837.)
Defendant contends Officer Tan manipulated the bag in defendant’s pants pocket
to ascertain it contained methamphetamine, rendering the search impermissible under
Dickerson. The Attorney General maintains Tan did not testify that he manipulated the
bag, but rather immediately suspected it contained methamphetamine, thus rendering the
search lawful under Dickerson. While both parties focus on the character of Tan’s initial
touch of what turned out to be a baggie of methamphetamine, there is more to the factual
context, rendering the search and eventual seizure of the contraband permissible. (See
Dibb, supra, 37 Cal.App.4th at pp. 834–837.)
In Dickerson, the police stopped the defendant when he attempted to evade the
officers as he was leaving a building known for cocaine traffic. (Dickerson, supra,
508 U.S. at pp. 368–369.) A patdown search revealed no weapons, but the officer felt a
“small lump” in the defendant’s pocket. (Id. at p. 369.) The officer did not immediately
suspect the lump was contraband but examined it further and, according to the state
court’s findings, “determined that the lump was contraband only after ‘squeezing, sliding
and otherwise manipulating the contents of the defendant’s pocket’—a pocket which the
officer already knew contained no weapon.” (Id. at p. 378.)
The Dickerson court began its analysis by acknowledging the plain-feel doctrine
as a permissible corollary to the plain view doctrine. “The rationale of the plain-view
doctrine is that if contraband is left in open view and is observed by a police officer from
a lawful vantage point, there has been no invasion of a legitimate expectation of privacy
and thus no ‘search’ within the meaning of the Fourth Amendment-or at least no search
independent of the initial intrusion that gave the officers their vantage point. [Citations.]
The warrantless seizure of contraband that presents itself in this manner is deemed
justified by the realization that resort to a neutral magistrate under such circumstances
would often be impracticable and would do little to promote the objectives of the Fourth
Amendment. [Citations.] The same can be said of tactile discoveries of contraband. If a

7
police officer lawfully pats down a suspect’s outer clothing and feels an object whose
contour or mass makes its identity immediately apparent, there has been no invasion of
the suspect’s privacy beyond that already authorized by the officer’s search for weapons;
if the object is contraband, its warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context.” (Id. at pp. 375–376, fn. omitted.)
The court concluded, however, that the facts of the case precluded reliance on the
doctrine.
In People v. Dickey, on which defendant also relies, a police officer approached
the defendant, who was sitting in the driver’s seat of a car stopped in the roadway with its
engine running. The defendant truthfully identified himself, but neither he nor the
passenger had identification. He also could not produce a vehicle registration, but the
officer ascertained by radio that the car was registered to him. (People v. Dickey, supra,
21 Cal.App.4th at p. 954 (Dickey).) The defendant refused the officer’s request to search
the car but consented to a search of a backpack, which he denied was his. Therein, the
officer found a film canister containing baking soda and a toothbrush. (Id. at pp. 954–
955.) The defendant claimed he used the baking soda for brushing his teeth. The officer
then conducted a patdown search of the defendant, whom he said was nervous and
sweating, and felt no hard objects. But he did feel a bulge. The officer’s description was
as follows: “ ‘I felt the bulge, and it felt not round, but elongated and it had a texture or
just a good feeling to it, and I just squeezed from the outside of it and felt it was a plastic-
felt like plastic or felt like a plastic baggie with something in it.’ ” (Id. at p. 955.) The
deputy then reached into the defendant’s pocket and retrieved a baggie containing less
than one-half ounce of marijuana and a baggie containing 3.19 grams of cocaine, the
latter being the basis of the charge at issue. (Ibid.) The appellate court concluded there
was no justification even for the patdown search because there were no facts that “would
lead an officer to ‘ “. . . reasonably believe in the possibility that a weapon may be used
against him. . . .” ’ [Citations.]” (Id. at p. 956.) The court further concluded that even if
the search were permissible, its scope was exceeded when the officer reached into the

8
defendant’s pocket because the incriminating character of the object was not immediately
apparent. (Id. at p. 957.)
Dibb presents a contrasting situation. There, the defendant was a passenger in a
car stopped for Vehicle Code violations. He consented to a search of his fanny pack,
which contained ammunition, a scale with an odor of methamphetamine, a plastic bag,
and a beeper. He was also wearing a beeper. The officer conducted a pat search that
revealed no weapons, but under the leg of the defendant’s pants, he felt an “unusual”
object which was “lumpy,” with “volume and mass.” (Dibb, supra, 37 Cal.App.4th at
pp. 834–835.) The Dibb court was of the view that “[w]hether an officer’s suspicion that
an object contained within a person’s clothing consists of narcotics, derived at least in
part from a patdown of a person’s outer clothing, permits the officer to conduct a full-
blown search of the individual or to seize the object felt depends on whether the officer
had probable cause to arrest the person for narcotics possession; the warrantless search
then becomes justified as a search incident to arrest. [Citation.]” (Id. at pp. 835–836,
italics omitted.) This principle, Dibb explained, was in accord with the plain feel
justification for seizure described in Dickerson. (Dibb, supra, at p. 836.) “The critical
question,” according to the Dibb court, “[was] not whether [the officer] could identify the
object as contraband based on only the ‘plain feel’ of the object, but whether the totality
of the circumstances made it immediately apparent to [him] when he first felt the lump
that the object was contraband.” (Id. at pp. 836–837.) The court concluded the seizure
was justified because the officer’s “tactile perception of the lump, combined with the
other circumstances, created a reasonable inference that the lump was contraband.
[Citation.]” (Id. at p. 837.) The “totality of the circumstances” included the beepers, the
scale smelling of methamphetamine, and the plastic bag in the defendant’s possession,
and the “unusual lump . . . located in an unusual location not commonly utilized to carry
everyday items.” (Id. at pp. 836–837.)
We conclude the instant case is more similar to Dibb than it is to Dickey.
First, we agree with the Attorney General that Officer Tan did not testify that he
manipulated the baggie in order to discern more about its contents. On the contrary,

9
during cross-examination designed to elicit testimony that Tan was unsure of what was in
the baggie and thus manipulated it in order to deduce suspected methamphetamine, he
testified as follows:
“Q. And then in his front left pocket of his shorts, you felt something that you
believed to be another packet of cigarettes, correct?
“A. Yes.
“Q. Based on your training and experience and your observation from your
touching of the pockets, the left-hand side of the pocket, how big of a packet of cigarettes
would you say you felt?
“A. A packet of cigarettes—a normal pack.
“Q. Was there anything that you felt other than the packet of cigarettes in the left-
hand pocket of the shorts?
“A. I felt what I believed to be a bag of methamphetamine sliding across that
Marlboro box of the cigarette box when I was grasping it from the outside.
“[¶] . . .[¶]
“Q. . . . As it relates to the plastic bag that you felt in the left pocket, did you feel
the plastic bag before or after feeling the cigarette pack?
“A. Simultaneously.
“Q. You said that based on your training and your experience, you recognized that
this plastic bag was something that could contain methamphetamine, would that be a
correct characterization of your testimony?
“A. Sort of but not quite.
“Q. Could you explain it further or correct anything I misstated?
“A. I, basically, said that when I felt the bag and the crunchy substance in it—
when I grabbed the outside of the cigarette pack, I felt the bag and the crunchiness
together. I recognized that it was a bag of crystal methamphetamine from prior searches.
“Q. And to your understanding this grasping of the bag and the crunchy substance
that was in it, was this something that occurred simultaneously as you were holding the
cigarette pack?
“A. It happened simultaneously to me grasping and having the exterior pocket.”

This testimony stands in contrast to the officer’s testimony in Dickerson which
precluded application of the plain feel exception in that case. In Dickerson, the officer’s
testimony “ ‘belie[d] any notion that he “immediately” recognized the lump as rock
cocaine’ ”; rather “the officer determined that the lump was contraband only after
‘squeezing, sliding, and otherwise manipulating the contents of the defendant’s pocket’—
a pocket which the officer already knew contained no weapon.” (Dickerson, supra,
508 U.S. at p. 378.) Here, Officer Tan did not “already” know defendant’s left front

10
pocket contained no weapon. Tan felt the sliding, crunching baggie simultaneously with
feeling the cigarette box (i.e., simultaneously with feeling the “bulge”). And, based on
his training and experience, Tan “recognized” he was feeling a baggie of
methamphetamine. These circumstances bring this case within the plain feel exception.
Furthermore, this case involves more than an officer simply making a pat search
and feeling a drug baggie. Officer Tan was on the property pursuant to a search warrant,
and methamphetamine sales were expected to take place at DeLuna’s residence. Tan
knew defendant, had done surveillance on him in connection with a drug investigation,
and was in the process of obtaining a warrant for him and to search his residence and car.
And, significantly, before Tan removed the baggie from defendant’s pocket, defendant
voluntarily confirmed the baggie contained methamphetamine.2 As in Dibb, the officer’s
“tactile perception of the lump, combined with the other circumstances, created a
reasonable inference that the lump was contraband.” (Dibb, supra, 37 Cal.App.4th at
p. 837.)
Accordingly, the trial court did not err in denying defendant’s motion to suppress.
Drug Program, Drug and Alcohol Testing, and AIDS Education Fees
Defendant next claims the trial court erred because it delegated the determination
of his ability to pay fees to the probation department. He further asserts he cannot pay
the fees and they should be stricken. The Attorney General maintains defendant forfeited
his challenge to the fees because he failed to make any objection when they were
imposed. We agree with the Attorney General, given the Supreme Court’s recent trilogy
of decisions on fees and forfeiture—People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar),
People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), and People v. McCullough (2013)
56 Cal.4th 589 (McCullough).
In McCullough, the Supreme Court considered “whether a defendant who failed to
object that the evidence was insufficient to support a finding of his ability to pay a

2
Although the trial court did not consider this fact relevant—saying it happened
“after” the pertinent events—in fact, defendant’s admission occurred before Tan actually
reached into defendant’s pocket and removed the baggie.
11
booking fee [under Government Code section 29550.2, subdivision (a)] forfeited his right
to challenge the fee on appeal.” (McCullough, supra, 56 Cal.4th at p. 591.) A booking
fee must be imposed “[i]f the person has the ability to pay . . . .” (Gov. Code, § 29550.2,
subd. (a).) In holding that an ability-to-pay objection is forfeited in the absence of an
objection in the trial court, the high court distinguished sufficiency of the evidence
challenges to a judgment because the defendant has necessarily objected to the
sufficiency of the evidence by contesting it at trial. (McCullough, supra, 56 Cal.4th at
pp. 596–597.) By contrast, when it comes to the defendant’s ability to pay a fine or fee,
the factual record remains undeveloped in the absence of an objection, thus precluding
informed appellate review of what is essentially a factual determination. (Id. at p. 597.)
In Trujillo, the court held the forfeiture rule announced in McCullough also
applies to probation supervision fees imposed under Penal Code section 1203.1b.
(Trujillo, supra, 60 Cal.4th at pp. 853–854.) The defendant in Trujillo sought to
distinguish probation supervision fees from the booking fees, arguing a probation
supervision fee may only be imposed if certain procedures are followed. (Id. at pp. 857–
858.) The Supreme Court rejected this argument, explaining the burden rests on the
defendant to assert noncompliance with any of the procedures specified by statute. (Id. at
p. 858.)
In Aguilar, the court applied the forfeiture rule to both the probation supervision
fee as well as an order for reimbursement of fees paid to appointed trial counsel under
Penal Code section 987.8. (Aguilar, supra, 60 Cal.4th at p. 864.) Just as in Trujillo, the
court rejected the attempt to distinguish McCullough on the ground the booking fee
statute, in contrast to the probation supervision fee statute, does not include certain
procedural requirements. (Aguilar, supra, at p. 866.)
Although defendant, like the defendants in McCullough, Trujillo, and Aguilar,
failed to make any objection in the trial court to the imposition of the fees, he
nevertheless contends his challenge is a “purely legal question that requires no objection
to preserve it on appeal.” We disagree.

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 As the court stated in McCullough, defendant may not “ ‘transform . . . a factual
claim into a legal one by asserting the record’s deficiency as a legal error.’ [Citation.]
By ‘failing to object on the basis of his [ability] to pay,’ defendant forfeits both his claim
of factual error and the dependent claim challenging ‘the adequacy of the record on that
point.’ [Citations.]” (McCullough, supra, 56 Cal.4th at p. 597.) Moreover, defendant’s
attempt to distinguish McCullough is no different from the arguments the Supreme Court
rejected in Trujillo and Aguilar. As the court explained in Trujillo, if the trial court fails
to follow certain mandatory procedures or guidelines contained in a statute authorizing a
fine or fee, it is the defendant’s burden to assert noncompliance with the required
procedures. (Trujillo, supra, 60 Cal.4th at p. 858.) Failure to object to the trial court’s
noncompliance waives the right on appeal to challenge the imposition of the fee or fine.
(Ibid.)
We therefore conclude the forfeiture rule announced in McCullough, and
reaffirmed and further explicated in Trujillo and Aguilar, applies to the Health and Safety
Code section 11372.7 drug program fee, the Penal Code section 1203.1ab drug and
alcohol testing fees, and the Penal Code section 1463.23 AIDS education fee. In sum,
because defendant failed to voice any objection to the referral of his ability to pay to the
probation department, we conclude he forfeited any complaint about the referral on
appeal.

Defendant alternatively claims that if he did forfeit his challenge to the fees by
failure to object, his trial counsel provided ineffective assistance of counsel.
In order to establish a claim of ineffective assistance of counsel on appeal, a
defendant bears the burden of demonstrating both that counsel’s performance fell below
an objective standard of reasonableness (Strickland v. Washington (1984) 466 U.S. 668,
687–688) and that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Id. at p. 694; People v.
Ledesma (2006) 39 Cal.4th 641, 746.) “ ‘ “[If] the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged [,] . . . unless counsel was

13
asked for an explanation and failed to provide one, or unless there could simply be no
satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.)
Defendant maintains there could have been no tactical reason for his counsel not
to object to the imposition of the fees. However, the probation report indicates defendant
had been employed in the past and in his “current” employment was making $22.00 an
hour. Thus, defense counsel could have reasonably concluded defendant had the ability
to pay the drug program, drug and alcohol testing, and AIDS education fees and therefore
deemed no objection was warranted. An attorney does not provide deficient performance
by failing to make an objection that counsel determines would be futile or unmeritorious.
(See People v. Price (1991) 1 Cal.4th 324, 387.) We therefore reject defendant’s
ineffective assistance of counsel claim.

DISPOSITION
The judgment is affirmed.

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 _________________________
Banke, J.

We concur:

_________________________
Humes, P. J.

_________________________
Dondero, J.

A142237, People v. Crowley

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